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Hypothetical. Person (A), before in his life, had engaged in some act that, allegedly, defamed some other person (B); later on in life, person (A) becomes an associate justice of the U.S. Supreme Court... Could person (B) sue person (A), and take his case, ‘‘All the way up to the Supreme Court?’’ If so, what would happen? Would the justice (being sued) recuse himself? What happens if he does not recuse himself?

(Amending hereafter: Given that comments & answers were disrupted by the issue of the ‘‘Statute of Limitations,’’ while being good willing as is obvious, then it should be neglected, for the purpose of extending this query to its most lucid extension.)

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    As a sidenote, "all the way to the Supreme Court" is understood by the general public as "it is such an important case that it is only fit for the highest jurisdiction". However, in the context of defamation law, it often means "obvious SLAPP, but coming from a plaintiff ready to waste money on appeals". (You don’t appeal if the lower court sided with you.)
    – KFK
    Commented Apr 18, 2023 at 10:47
  • @KFK You might not appeal it, but the defendant might.
    – reirab
    Commented Apr 18, 2023 at 19:41
  • Defamation is quite a quirky tort cause of action. But there are all sorts of more ordinary claims someone could have against a U.S. Supreme Court justice unrelated to their official duties - e.g. a lawsuit for an unpaid promissory note or a car accident.
    – ohwilleke
    Commented Apr 19, 2023 at 4:00
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    why does it need to happen before he is a supreme court justice? Commented Apr 19, 2023 at 15:06
  • @user253751, no specific reason... insofar as it debilities one’s ability to answer.
    – user49993
    Commented Apr 23, 2023 at 8:57

3 Answers 3

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To the title question, yes, of course, Justices are subject to the law same as anyone else is (at least in theory; whether actual practice bears that out is another matter). Chief Justice Roberts (and the rest of SCOTUS, and a good chunk of the judiciary to boot, and then some) was a named defendant in the case Shao v. Roberts that was appealed to SCOTUS. The Justices all recused themselves rendering the court short of a quorum and leaving the prior appellate court decision to dismiss the case sua sponte in place.

However, Justices essentially police themselves. As the head of the judicial branch they are largely independent of Congressional or Executive attempts to control how they go about their business. Recent calls to create a legal code of ethics for Justices exist because such a code perhaps cannot, and currently does not, exist under the current constitutional order. As such Justices make their own decisions on when to recuse (see my answer here for further details). Your hypothetical justice would do the same, and the court would proceed as it always does whether they do or don't.

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    Shao v Roberts is... uh... let's say that the plaintiff sued tons of parties that had little to nothing substantial to do with the case and alleged Google and Youtube conspired with the McManis Defendants and Chief Justice Roberts - which is never a sign of a good case. The full list of defendants included the whole SCOTUS even, leading to the automatic recusal of all judges.
    – Trish
    Commented Apr 18, 2023 at 11:03
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    @Trish Indeed. Still, the case exists as a valid case all the same. Commented Apr 18, 2023 at 11:08
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    True true, just wanted to point out why every single judge in SCOTUS eyes the case and then said "I'm out"
    – Trish
    Commented Apr 18, 2023 at 11:08
  • Thank you, for your response Zibabawa. It’s an issue that communed & circulated in the press recently; however I don’t think as a matter of republican principle, that it’s unimportant to not confer any sort of statute that would disallow a Jurist from being credited with their own virtue simply, however true it is in actuality. I would discount the concern, regarding any wrenching effect it may concatenate to the constitution (structure) of government too, the ‘‘policing’’ could be delegated to Congress as it had been with fmr. pres. R. M. Nixon; in his case, a special investigative counsel.
    – user49993
    Commented Apr 23, 2023 at 9:19
  • (The latter concern being the issue of the ‘‘Separation of Departments,’’ which was litigated, and accumulated in Morrison v. Olson and others.)
    – user49993
    Commented Apr 23, 2023 at 9:20
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The problem is the Statute of Limitations

Let's say Abel defames Bob. Abel then studies law and becomes a judge, and about 30 years down the line becomes Supreme Court Judge Abel.

Now, Defamation is one of the shorter statutes of Limitation: The claim has to be made one year from the defaming statement. By the time Abel has his law degree, the case can no longer be brought and Bob has no legal recourse to sue. His case will be dismissed with prejudice for the statute of Limitations in the first instance, the appeals court will deny to review a case that is multiple decades past its statute of limitations and the Supreme court will deny to hear the case also.

As the case can't reach the supreme court, there is no reason for the judge to recuse themselves.

Judges involved with the case or parties should recuse themselves

However, two much more likely setups are the following, and repeatedly have happened:

  • Judge Abel hears Bob's case in his time at the Court of Appeals and is elevated to SCOTUS. Then case slogs through the instances and ends up on the SCOTUS table years later. Judge Abel now should recuse themselves, since they had already judged on it.

  • Judge Abel has an investment in Bob Inc, and Bob Inc ends in front of SCOTUS, they should recuse themselves.

SCOTUS does not need to disclose their form of involvement with the case, so it is often a Black Box. To some degree, how often a judge recuses themselves is highly dependent on how long they are on the court: new judges like Barrett and Jackson are much more likely to meet their own old cases in court while judges that are on the bench longer have other reasons to recuse themselves.

But the decision of each judge is on their own, and at times there is critique on some of the judges that do not recuse themselves, as SCOTUS is the last instance and no other instance can review their decision to recuse themselves. However, most of the times, if a SCOTUS judge is an actual defendant, they will recuse themselves. Which... in case the whole court is sued jointly and separately - as happened in Shao v Roberts (et al.) - would usually lead to the whole bench recusing themselves for being involved with the case.

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Yes

To avoid statute of limitations issues assume a sitting Supreme Court justice allegedly defames someone today outside the colour of their office. The aggrieved person can sue and because judges are not the President, they are not immune from civil suits in their private capacity.

Since Supreme Court judges serve for life, that justice could very well be there when any appeal reached that level. They would then have to decide if there is a conflict of interest or not. Now, most people would say yes, there is but the decision isn’t up to most people, it’s up to the judge themselves. And, since there is no appeal from the Supreme Court, their decision on recusal is binding.

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