I don’t know if this situation has ever come up, but what if Judge Mr. Jones sits on the State Supreme Court of State X and he and his colleagues make a decision about something. Judge Mr. Jones writes the majority opinion.
Now the case gets moved on to the U.S. Supreme Court where Justice Mrs. Jones sits. Does Mrs. Jones have to recuse herself from the case because she can’t rule on a case that Mr. Jones ruled on?
She doesn’t have to, since SCOTUS polices itself, but not to do so would call into question her ethics. Justice Breyer has a brother who’s the district judge for the Northern District of California. Breyer routinely recuses himself from cases on which his brother ruled to avoid the appearance of impropriety. I can’t imagine that a spouse wouldn’t recuse herself from a case on which the other spouse had ruled for the same reason.
I don’t know if the recusal issue ever actually came up, but the husband-wife pair on different courts has occurred in Canada.
Antonio Lamer was Chief Justice of Canada from 1990 to 2000.
His wife, Danièle Tremblay-Lamer was appointed to the Trial Division of the Federal Court in 1993, and is still a judge on that court.
I have no idea if a case that she decided ever went on appeal to the Supreme Court, but if it had, I would have expected the Chief Justice to recuse himself. If so, another judge would also have sat out the case, and the Court would sit as a panel of seven.
To expand on my answer a bit, since my answer kinda sucks, Title 28 section 455 specifies that
Regarding spouses, there’s nothing about the other spouse being a judge, but judges “shall” disqualify themselves if
So it would seem under the first part of that statute that the justice in question would be required to recuse herself. However, individual justices decide for themselves whether his or her impartiality might reasonably be questioned.
There have been some fairly high profile questions in the last several years regarding the impartiality of a couple of SCOTUS justices. Some thought that Scalia and Thomas should have recused themselves in Bush v Gore. Scalia’s son Eugene worked for the law firm arguing for Bush (the firm said it had built a so-called “Chinese Wall” around him so that he did no work on the case itself) and Thomas’ wife was vetting applications for Bush White House appointees. In the Cheney energy meeting case, it was suggested that Scalia should recuse himself because he and Cheney had gone duck hunting together (IIRC there was some question about who paid for the trip as well). Scalia did not recuse himself, saying that there was a difference between the office of the Vice-President and Dick Cheney, Huntin’ Buddy (and concluded his remarks on the subject by saying “quack quack”). In the Pledge of Allegiance case, the plaintiff filed a motion for Scalia to recuse himself on the basis of one or more speeches Scalia had given criticising the 9th Circuit decision. In that case, Scalia agreed that his impartiality was in question and recused himself.