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Meet Bob. Bob is a supreme court justice and has a hobby of engaging in private, noncommercial, and legally questionable activities. As a result of those activities, Alice is now suing Bob in his capacity as a private citizen. The outcome of the case revolves around a novel constitutional question not covered by existing precedent, and so the case works its way up through the lower courts and is ultimately appealed to the supreme court. Because Bob is the defendent, all the other supreme court justices have a conflict of interest, so what then? Does Bob just recuse himself to argue the case, and the other justices continue business as usual? Or does the court just refuse to hear the case, and let the relevant lower court figure it out? Does it matter whether Alice or Bob is the one to appeal? Does it change things significantly if Alice is an ambassador, so the supreme court has original jurisdiction, and thus can't send it to a lower court?

I know that if every judge had a conflict of interest, they could ignore it, but it seems wrong to apply that rule in this case, since that would result in Bob being both a defendent and judge, which just seems wrong.

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  • Are you asking whether Bob himself could argue the case, or whether his attorney could do so? In the former case, the first question would be whether Bob is a member of the Supreme Court Bar. My guess is that justices would not be admitted, nor, if they were already a member when appointed, allowed to remain a member. One could check whether any of the current justices are members, but unfortunately one would have to search old issues of the Supreme Court Journal. Oct 1, 2022 at 3:52
  • As for the rule of necessity, I don't see why it should be all or nothing. It seems quite plausible that the justices would agree that the court could hear the case, but that Bob himself should still be recused, as he has a much more severe conflict of interest than the other eight justices. Oct 1, 2022 at 3:53
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    @NateEldredge I'm interested in the latter case, where the justice is a defendant in the case, with a proper lawyer in charge of actually defending the case for them.
    – Aiden4
    Oct 1, 2022 at 3:56

2 Answers 2

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You are not conflicted just because you are colleagues

7.2.2 Personal friendship with, or personal animosity towards, a party is also a compelling reason for disqualification. Friendship may be distinguished from acquaintanceship which may or may not be a sufficient reason for disqualification, depending on the nature and extent of such acquaintanceship.

Supreme Court judges might be friends but that wouldn’t be the default assumption. The colleagues who are merely acquaintances will here the case. In the unlikely event that all the judges are friends with Bob then some will have to hear the case notwithstanding the conflict.

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As far as I know this has never happened. There is no U.S. Supreme Court justice in history who has ever been known to practice law at the same time whether it would be legal or not. There is a strong norm against doing so. Any more specific answer would be speculative.

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