This is going to be a big year for the Supreme Court. This election cycle is going to remind everyone of the effects of its infamous Citizens United
decision, as vast sums of corporate money flood the electoral system. The blockbuster healthcare case could be heard and decided right in the middle of the presidential campaign. Big cases are on the Court’s docket that deal with civil liberties, personal privacy, consumer rights, the environment, the rights of citizens to use the courts to seek justice, and, of course, corporate power. Last week, protesters, including Princeton professor Dr. Cornell West, were arrested
outside the Supreme Court, carrying signs saying “Human Need, Not Corporate Greed.” At the same time, public faith in the Court as an institution is falling. Gallup reports that the Court’s approval rating has plummeted
to 46 percent, close to an all-time low.
With so much at stake, with deeply contentious issues on the docket, and with public perceptions of the Court’s legitimacy starting to shift into negative territory, one would think that Supreme Court justices would be particularly careful to distance themselves from anything that would call their objectivity into question or that would align them directly with the hyper-partisan political forces roiling the country. Unfortunately, that’s not what’s happening, as revealed in a new short film from Alliance for Justice, called A Question of Integrity: Politics, Ethics, and the Supreme Court
The film shows, for example, that Justices Clarence Thomas and Antonin Scalia were flown out
to luxury resorts at the expense of the Federalist Society in order to hobnob with the people attending the infamous political strategy conferences hosted by the billionaire Koch brothers, whose partisan goals are no secret (and whose companies are frequently in federal court). Thomas went in 2008 and Scalia in 2007. David Koch himself explains these meetings are for “combating the multitude of public policies that threaten to destroy America as we know it.” One may reasonably ask which public policies Scalia and Thomas were there to combat in these closed-door Koch conclaves.
At the same time, Justice Samuel Alito feels free to give
keynote speeches at fundraisers supporting the American Spectator
magazine and the Intercollegiate Studies Institute, both organizations with strong ideological agendas. And recent news reports reveal that Justice Thomas happily accepts the largess of Texas businessman and conservative donor Harlan Crow in the form of rides on his jet and yacht, million-dollar donations to the justice’s pet project, and gifts of $19,000 historic bibles. Justice Thomas’ wife, Virginia, isn’t left out either; Crow gave her $500,000 to start her own right-wing advocacy group, Liberty Central.
Why does all this matter? In order for the American judicial system to function effectively, judges must be perceived as impartial, independent arbiters of the law. They are expected to be guided by legal precepts rather than partisan or personal motives, and unencumbered by conflicts of interest.
Everyone who walks into a courtroom needs to know they will get a fair hearing before a judge who has not pre-judged their case as part of a political agenda. As the Code of Conduct for United States Judges explains, “An independent and honorable judiciary is indispensable to justice in our society.” Or, as the Supreme Court itself has said, “justice requires the appearance of justice.”
But here’s the kicker: The Supreme Court of the United States is not formally bound by the Code of Conduct that guides the ethics of all other federal judges.
This has to change. As a country rooted in the rule of law, we simply can’t afford to have Supreme Court justices who feel unconstrained by the same formal ethical standards that bind all other federal judges. The code prohibits participation in political activities. It bans serving as the keynoter at fundraising events, no matter how seemingly benign. It instructs judges not to do anything that creates even the “appearance of impropriety.” Yet some justices do those very things, even while they claim to voluntarily adhere to the rules.
The ethics code is not an onerous straitjacket designed to keep Supreme Court justices out of the public eye. They are not only free to speak and interact with all manner of groups or individuals, they are encouraged to do so. It was startling to hear Justice Scalia at a recent hearing of the Senate Judiciary Committee admit that he has “very little contact with the American people.” That can’t be healthy for our democracy or the law.
But the code builds a common-sense ethical firewall built around political activity, fundraising, and relationships that create an appearance of impropriety. Unfortunately, as the record shows, that firewall has too frequently been breached by some justices on this Supreme Court and so action must be taken.