Judges in Their Own Cases: Biblical Kings and Supreme Court Justices

Abstract

Allegations that the justices of the Federal Supreme Court are judges in their own cases and that they judge themselves leniently are common. These allegations are often accompanied by an association with kings, queens, and monarchy, accountable to no one but their own divine authority. This Article took this association seriously and used the biblical story of prophet Nathan's rebuke of King David for his sin towards Bathsheba and Uriah to explain the problems, tensions, and conflicting considerations of the contemporary recusal doctrine of the Federal Supreme Court. This biblical judicial tale has two possible conclusions, depending on two different interpretations.

The first interpretation appeals to Nathan's status as a court prophet and the caution his job necessitated. A court prophet is a member of the royal court who is dependent on the king and is in his service. This interpretation illustrates the need for institutional arrangements that secure judicial independence and impartiality by guaranteeing the judge’s term of office or by drawing a line to separate proper judicial interactions and relations from inappropriate judicial ties to politicians, interest groups, wealthy benefactors, and other potential litigants. According to the second interpretation, the poor man’s ewe lamb parable is a juridical parable meant to induce David to judge himself by the same yardstick he applies to others. This interpretation suggests an utmost need to install a neutral third-party review, stipulate discovery, provide a full explanation, and adhere to precedents.

Despite the striking similarities between the legal conditions of biblical kings and Supreme Court Justice, the Article concludes, after careful consideration, that the practices of Supreme Court Justices are not like those of biblical kings. They are worse, much worse. The problem is not that the justices judge themselves but rather that contrary to biblical kings, the rules, and principles intended to regulate their self-judgment are almost nonexistent.

Keywords: Federal Supreme Court, Recusal, Judicial Ethics, Biblical Law