What a Justice Gorsuch Recusal Could Mean for the SCOTUS Code of Ethics

Justice Neil Gorsuch recused himself on December 4, 2024 from Seven County Infrastructure Coalition v. Eagle County, Colorado, et al., a case on whether the National Environmental Policy Act (NEPA) requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority. The case involves a bid by a group of counties in Utah to build a railway line that connects the Uinta Basin in northeastern Utah with an existing freight rail network to be used primarily in transporting waxy crude oil. Justice Gorsuch’s recusal could point to more widespread implementation of the SCOTUS code of ethics adopted in 2023. Justice Gorsuch’s recent recusal from oral arguments could point to more widespread implementation of the SCOTUS code of ethics adopted in 2023.

The facts here involve one of Justice Gorsuch’s former clients, Philip F. Anschutz, who owns a company that filed an amicus brief urging the Justices to curtail NEPA regulation based on the argument that such regulation has led to “absurd requirements” that cause “significant harms to the project developers and the economy.” Anschutz was not only a client, but also a friend of Gorsuch’s. In 2005, Justice Gorsuch formed an LLC with two lieutenants of Anschutz’s business with whom he jointly bought a 40-acre vacation property, which was sold only after he was nominated to the Supreme Court. In Anschutz’s role as a conservative donor, he supported Justice Gorsuch securing President George W. Bush’s nomination to sit on the federal appeals court in Denver. After joining the appeals court, Justice Gorsuch also appeared as a keynote speaker at Anschutz’s annual dove hunt events hosted at Anschutz’s ranch.

The recusal statute, 28 U.S.C. § 455, articulates, that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned” and that “[h]e shall also disqualify himself…[when] he knows that he, individually or as a fiduciary…has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.” It does not, however, have any enforcement mechanism; in other words, it is up to an individual justice to decide whether his or her recusal is necessary.

Despite systematically recusing himself from cases involving Anschutz as an appeals court judge, Justice Gorsuch’s recusal from Seven County Infrastructure Coalition et al. v. Eagle County, Colorado, et al., which the Supreme Court heard on December 10, 2024, came only after Democratic lawmakers and ethics watchdogs urged him to step aside. Nevertheless, Justice Gorsuch cited the Court’s first formal ethics code, announced last November, rather than the recusal statute. The ethics code codifies that the justices should not let outside relationships influence their official conduct or judgment, and Gorsuch’s deference thereto marks the first time a present Republican-nominated justice has publicly cited this code of ethics.

The formal ethics code still does not contain any enforcement mechanism disallowing the Justices from determining their own disqualifying conflicts; therefore, absent the Justices’ widespread acceptance thereof, it lacks the provisions necessary to hold the Court accountable. In fact, when the formal ethics code was introduced, there were concerns that it was only a ploy to prevent media discussion of contemporaneous ethical scandals in the Supreme Court. Continued deference to the code is the only way for it to become more than a tool to appease the media absent provisions requiring accountability in explicit scenarios. Justice Gorsuch’s recusal represents a step in the right direction towards use of the code of ethics to promote meaningful reflection on the conflicts present in a given case and appropriate ethical action when necessary on the Court.