Let us say that in the future the very institution of the SCOTUS is involved as a plaintiff or defendant in a case (maybe a land dispute on which the court stands or for whatever reason the SCOTUS and the court system decides to levy a lawsuit against someone due to harm being inflicted on them) or maybe a case presents itself in front of the SCOTUS which would decide the very future of the SCOTUS justices themselves(maybe a party wants to expand the SCOTUS by court-packing and is dragged to the courts on the grounds of how constitutionally valid it is). In these cases, the SCOTUS would have a clear conflict of interest which would affect their rulings if the case does reach the SCOTUS. What would be done in such a case>

Another possible case is if all the 9 SCOTUS justices are themselves involved financially in the case which is presented before them. One would think that in such a case the decision of the lower courts would stand. But what if the writ of certiorari is accepted by the SCOTUS justices (of course it would since the justices are involved and they will benefit from it ) and a clearly biased ruling is passed.

  • A very interesting question, though I think the 2 parts are probably best as separate questions: 1) Could the Supreme Court rule on the legality and/or power of the Supreme Court (ie, could they pull a Marbury v. Madison today) and 2) what would happen if Justices with a conflict of interest didn't recuse themselves?
    – divibisan
    Commented Aug 7, 2020 at 0:30
  • Should I split the second paragraph as a second question? Commented Aug 7, 2020 at 0:35
  • I'm going to guess it'd somehow end up in the senate, since they try impeachments. But that is just speculation on my part.
    – user29681
    Commented Aug 7, 2020 at 2:28
  • Incidentally this very nearly happened. cbsnews.com/news/federal-judges-sue-for-pay-increases
    – Joshua
    Commented Aug 7, 2020 at 20:10

4 Answers 4


This is a highly speculative question — it lays out scenarios that are well off the beaten path of practice and precedent — but I think I can safely say the following.

First, as I understand it, in most legal contexts it is generally left to the judge to determine whether he or she can effectively try a case. When judges receive a case it is their case; an attorney can ask a judge to recuse (excuse him/herself from the case), but the judge cannot really be compelled to do so. An attorney's main recourse is to demand a mistrial, and then use the 'conflict of interest' issue when the case comes up on appeal. This can have a deleterious effect on a judge's reputation, and can lead to censure, so judges are usually willing to avoid any conflict of interest. At the supreme court level there is no appeal process, obviously, but justices are still sensitive to their position and reputation, and have occasionally recused themselves from cases to avoid any appearance of misconduct.

Second, any case that directly affects the powers of SCOTUS or its justices would only arrive at the Supreme Court if congress passed a law affecting the Supreme Court, and that law was challenged. The court would be limited in what it could rule on based on the disposition of the case in lower courts, and would be expected to render judgment solely on the constitutionality of the law. That kind of case is tricky to navigate, but whatever ruling the court gives would stand.

Finally, if Supreme Court justices are directly involved in malfeasance, they can — like the president, or any other high official — be impeached by the House and tried in the Senate. If successfully impeached and convicted, they would be removed from office and barred from future positions in the government, and then their case might be referred back to federal prosecutors to see if civil or criminal charges could be filed.

  • 2
    Impeachment convictions do not necessarily cause removal and disqualification from future positions. These are possible judgments the Senate can impose.
    – aschepler
    Commented Aug 8, 2020 at 1:14
  • 1
    @aschepler: I believe that's what I said, last paragraph: "If successfully impeached [in the House] and convicted [in the Senate], they would be...". I didn't spell it out win detail, perhaps, but I assumed people would follow your logic. Commented Aug 8, 2020 at 1:26
  • could be barred from future positions; would be removed from office. Commented Aug 8, 2020 at 1:49

a land dispute on which the court stands

Land disputes are not normally dealt with by the Supreme Court, and anyway the Supreme Court doesn't own the land, it is all Federal land so the dispute would not be between the court and an appellant.

SCOTUS and the court system decides to levy a lawsuit against someone due to harm being inflicted on them.

The Court does not have standing to be a litigant in a trial. The court (any court) can't sue someone. And you can't sue a court or a judge even if you disagree with the court.

all the 9 SCOTUS justices are themselves involved financially in the case which is presented before them.

This is a "what happens if an asteroid hits an erupting volcano" type question. Presumably all nine would recuse themselves and the judgement of the lower court would stand, but it would be pretty exceptional.

a party wants to expand the SCOTUS by court-packing

The Supreme Court is considered able to interpret any question of constitutional law, including those parts which apply to the Supreme Court. So this question can be considered and ruled on by the court.

In these cases, the SCOTUS would have a clear conflict of interest

In the first example the court is not directly involved. It's very unlikely but I think the court could give judgement if there was some constitutional matter raised by a land dispute. The second example can't happen since Justices can't sue or be sued (in their role as Judges) The final example is exceedingly unlikely. It is your third example, "court packing" that raises any question. However the answer is in Article III of the US Constitution:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. [...]

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, [... including] to Controversies to which the United States shall be a Party; [...]

[...] in all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact.

Nothing in the constitution prevents the court from interpreting any article of the constitution, including Article III and Article I (that gives the power of Presidents to appoint the court).

  • 1
    "The Court does not have standing to be a litigant in a trial." Indeed. Legally, there is only one "United States", and barring specific statutory authority (e.g., US Tax Court), the "United States" is represented legally by the Attorney General (or indirectly via one of the Attorney General's subordinates). Now, if I can just find a cite for that...
    – Just Me
    Commented Aug 7, 2020 at 13:37
  • "a land dispute on which the court stands"; there's no reason the court couldn't borrow another federal courthouse long enough to hear the case anyway. The power of the court is not in the land.
    – Joshua
    Commented Aug 7, 2020 at 20:03

Due to Judicial Immunity, judges (including SCOTUS justices) can't be sued for their actions in office. They can however be impeached like a sitting president, and tried by the U.S. Senate.


In your first example, where some case affecting the Supreme Court itself came before the Supreme Court then Supreme Court would likely either not hear the case, as most of the grounds you mentioned are invalid and the case would dealt with by lower courts without the need for the Court to get involved, or in the case of a real controversy they would hear the case citing the rule of necessity.

In your second example, where some case naming all Supreme Court justices as parties came before the Court, I'm not entirely sure what would happen. In cases where four or more justices haven been named, but not all nine, the court has affirmed the appeals court decision for lack quorum. If a case naming all the justices (or even just four or more) involved a real issue of law that needed to be decided, it's likely the rule of necessity would also apply here, but I don't think anything like has ever happened. Otherwise my guess is that the justices just let the case sit in judicial limbo, seeing no need to make a decision regarding it.

All federal judges are required disqualify (recuse) themselves whenever their "impartiality might be reasonably questioned." (28 USC 455) That not only includes cases that the judge is a party to, but any case where the ruling might be benefit or be disadvantage the judge, as well other circumstances like where the judge as personal bias against one of the parties. As such, there's a long history of such cases where the judge or judges are required by law to disqualify themselves, including cases before the Supreme Court.

However the common law rule of necessity applies when all judges capable of hearing a case would be disqualified. This rule prevents the judges from being disqualified, and allows the case to go forward, when disqualification would prevent any court from hearing the case. This rule was asserted by the Supreme Court in United States v. Will (449 US 200), a case involving the compensation of all federal judges including the justices themselves. The Court determined that not only was the district judge right not to disqualify himself, the Supreme Court justices couldn't do so either:

Far from promoting 455's purpose of reaching disqualification of an individual judge when there is another to whom the case may be assigned, failure to apply the Rule of Necessity in these cases would have a contrary effect by denying some litigants their right to a forum. And the public might be denied resolution of the crucial matter involved if first the District Judge and now all the Justices of this Court were to ignore the mandate of the Rule of Necessity and decline to answer the questions presented.

The rule of necessity would not only apply when a case affects all federal judges but also more broadly, when it affects all US citizens or residents. A hypothetical case on income tax or jury duty would also affect all judges, so the Supreme Court could still hear the case despite there being good reason question their impartiality.

However, in a case where only the impartiality of the Supreme Court justices and not judges generally is being questioned, and where the case being heard is a direct appeal from a district court, then US law (28 USC 2109) allows the Chief Justice to remit the cast to a Court of Appeals for a final decision. However direct appeals to the Supreme Court are only allowed in limited circumstances, like when a federal law is deemed unconstitutional.

The same US law also requires that if a case not on direct appeal can't be heard by the Supreme Court because of disqualification reduces the number of qualified justices to below the quorum threshold of six, and a majority of the remaining qualified justices determine that quorum can't be achieved during the next term then the appeals court decision is affirmed. Note however this requires that at least one justice not be disqualified.

So if a district judge determined that some law affecting the Supreme Court was constitutionally invalid, and was appealed directly to the Supreme Court, then I would expect the Supreme Court justices to disqualify themselves and refer the case to the appropriate Court of Appeals. If the case came through the appeals court(s) then rule of necessity applies one way or another, as the court can't even deny certiorari without a quorum of qualified justices. That would be the most likely outcome if the appeals court decision was one the Supreme Court agreed with or didn't find controversial enough to deal with. On the other hand, if different appeals courts came to different conclusions about the law then they'd be forced to hear the case by the rule of necessity.

In the other example you gave, where the Supreme Court justices are named as parties in a case before them does actually happen to time to time. I'm not sure what happens when all justices are named, but there's a number of examples of cases where enough justices are named to reduce the number of qualified justices to below six. In that case the practice of the court seems to be to affirm the appeals court decision for lack quorum as required by 28 USC 2109. In cases like these it's very unlikely that appeals court has come to a controversial decision anyways, almost certainly upholding a district court's decision to dismiss some groundless lawsuit against the justices.

There's an interesting recent case, Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation, where Supreme Court apparently had to walk a fine line between avoiding the appearance of a conflict interest while not affirming an appeals court decision that they had essentially overruled in another Supreme Court case. In the Deutsche Bank case, all but two Supreme Court justices apparently had a conflict of interest, likely a financial one given that a large number of big retirement funds were involved. The Court neither affirmed the appeals court decision for lack of quorum, denied certiorari, nor heard the case. Instead the two apparently unconflicted justices decided to defer the case to "allow the Court of Appeals or the District Court to consider whether to recall the mandate, entertain a Federal Rule of Civil Procedure 60(b) motion to vacate the earlier judgment, or provide any other available relief in light of this Court’s decision in Merit Management Group."

The problem the Supreme Court faced was that in the Merit Management Group decision the Court invalidated the basis the appeals court had used in deciding the Deutsche Bank case. Normally in such circumstances the Supreme Court would grant certiorari and then immediately vacate the judgement and send it back for reconsideration by the appeals court. Affirming the appeal court decision for lack of quorum would effectively contradict their recent Merit decision. Invoking the rule of necessity would be awkward at best in a situation where there were other judges are able to decide the issue, but there was no formal way for the Court to remit the case to them. So they kicked the can down the street, asking the appeals court to take the problem off their hands. Ultimately that's what happened, and the Supreme Court case was dismissed without the Court having to make a ruling whether to even hear the case.

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