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OP I N ION BY PHILIP SLAYTON TOP COURT TALES Tackling recusal A proper code of conduct would allow SCC judges to be more adventurous and forthright, and also protect them from misguided criticism. W hen should a Supreme Court of Canada judge decline to sit on a case? That sounds like an easy question. The judge should recuse herself if she has a con- flict of interest or lacks impartiality, or there could be a reasonable perception of either. But, of course, it's not that simple. What is a conflict of interest, real or perceived? What does it mean to be impartial? According to a recent New York Times editorial, there is a "recusal problem" at the United States Supreme Court. In part, that's because of extra-judicial activity by the justices of that court. The Times reports that Justice Antonin Scalia has met with the House of Representatives' Tea Party caucus; Samuel Alito attend- ed the annual fundraising dinner of The American Spectator, a conservative magazine; justices Scalia and Clarence Thomas attended meetings hosted by the conservative Koch brothers; and Justice Ruth Bader Ginsburg took part in Aspen Institute seminars partly fund- ed by left-leaning mogul George Soros. Extra-judicial activity like this makes people nervous. Are these judges politi- cally biased? What will they do when confronted with cases of political signifi- cance, as they frequently are? U.S. Supreme Court watchers are also bothered by more traditional con- flicts of interest. For example, should Scalia have recused himself from the 2011 Wal-Mart gender bias case because his son is a partner of the firm repre- senting Wal-Mart? He didn't, and gave the majority judgment favourable to the company. Serious objections to his participation were made, but Scalia couldn't care less. (It was Scalia who, when challenged by a journalist about the infamous 2000 Bush v. Gore deci- sion, snapped, "Get over it.") The Times says it's not good enough that each U.S. Supreme Court judge decides for himself whether he is inde- pendent and impartial, and the newspa- per is not alone in this view. In March 14 SEPTEMBER 2011 www. CANADIAN Lawyermag.com 2011, more than 100 law professors wrote a letter to the U.S. Senate and House judiciary committees, calling for "the implementation of mandatory and enforceable rules to protect the integrity of the Supreme Court." The professors urged that Supreme Court justices be required to conform to the Code of Conduct for United States Judges (they are currently exempt from the code's provisions), and asked for a set of spe- cific procedures for application of the code to Supreme Court justices. They recommended that a written opinion be required when a Supreme Court justice PIERRE-PAuL PARISEAu