U.S. Supreme Court Associate Justice Brett Kavanaugh attends his ceremonial swearing in in the East Room of the White House October 08, 2018 in Washington, DC. Chip Somodevilla | Getty Images

Several progressive organizations demanded Tuesday that Justice Brett Kavanaugh recuse himself from an upcoming Supreme Court case over the constitutionality of the Consumer Financial Protection Bureau, the post-crisis financial regulator, because he declared the bureau's structure unconstitutional while he was a federal appeals court judge in Washington. The groups argued that Kavanaugh will not be able to rule impartially in the case, Seila Law v. CFPB, because he has already gone on the record with his views in a case that presented a nearly identical legal question. Kavanaugh wrote that the CFPB's single-director structure was unconstitutional in a 2016 opinion and a 2018 dissent. "We call on Justice Kavanaugh to recuse himself from hearing a case on which he has already made up his mind," the groups — Demand Justice, Demand Progress Education Fund, the Revolving Door Project and Allied Progress — wrote in a statement. "The law clearly states that judges should recuse themselves when their impartiality might reasonably be questioned. Brett Kavanaugh has already ruled on the underlying legal question in this case. He cannot plausibly claim to be open to arguments from both sides," they wrote. Read more: A voter who could be key to Elizabeth Warren's 2020 hopes? Justice Brett Kavanaugh The case is scheduled to be argued in early March. The challenge to the bureau was brought by Seila Law, a California-based firm, which alleges that the independence of the agency's director runs afoul of the Constitution's separation of powers.

In an opinion for a panel of the U.S. Court of Appeals for the D.C. Circuit in 2016, Kavanaugh wrote that the "concentration of massive, unchecked power in a single Director marks a dramatic departure from settled historical practice and makes the CFPB unique among independent agencies." The full court overturned his decision two years later, prompting Kavanaugh to pen a dissent that reiterated his belief that the agency's structure was unconstitutional. That case is known as PHH Corp. v. CFPB. "In PHH, Kavanaugh offered a more than 70 page long dissent which he told the Senate constituted one of the most 'significant constitutional opinions' of his judicial career," the groups said. "Kavanaugh's personal reputational interest in seeing that bitter dissent against a bipartisan majority be vindicated by the Supreme Court is considerable." The justices are not subject to the code of conduct that applies to lower courts, though they generally will not vote on a case if they directly worked on it. Federal law bars justices from hearing cases in which their "impartiality might reasonably be questioned." But it would be atypical for a justice to step aside from a case that simply presents the same legal question as one that they have previously heard, according to Marty Lederman, a former Justice Department attorney who worked in the Office of Legal Counsel. "Although of course I can't say for certain, I'm not aware of any case in which a Justice has recused because he or she has already written on the Question Presented in another case — something that happens fairly regularly," Lederman wrote in an email. Chris Kang, the chief counsel at Demand Justice, said that the justices have wide latitude to decide which cases present conflicts for them. But he said the issue pointed to a "broader problem" about the lack of a Supreme Court code of ethics. "I do think that this case, and this recusal question, folds into the broader question of the Supreme Court's legitimacy," Kang said in an interview. "If a nominee can't discuss an issue in a confirmation hearing, in the most abstract terms, certainly that should apply here," Kang said. The Democratic-controlled House of Representatives passed legislation earlier this year that would create a code of ethics for the Supreme Court. The legislation has little chance of becoming law, and experts have raised doubts about whether it could be enforced even if it did. Gabe Roth, who runs the nonpartisan Supreme Court watchdog group Fix The Court, said that Kavanaugh should at least explain his decision not to recuse himself from the CFPB case.