Congress, Constitutional Law, Courts, Justice, Politics, Supreme Court

Ethics and The Supreme Court

Submitted By Lawrence Rafferty, (rafflaw) Guest Blogger

 

Professor Turley has recently discussed the ethical problems raised by Supreme Court Justices Scalia and Thomas by their attendance and participation in fund raisers for conservative groups.  In addition, Justice Thomas’ wife has also come under criticism for working for a lobbying group that benefitted from the Citizen United decision.  With all of the potential conflicts of interest that these Supreme Court Justices are involved in, it looks like someone is finally attempting to rein in the Justices and make them subject to the Judicial Conference’s Code of Conduct which all other Federal Judges have to adhere to.

Representative Chris Murphy of Connecticut has authored a bill to end the conflict of interests that some Supreme Court Justices refuse to recuse themselves from.  “Murphy’s bill will:

  • apply the Judicial Conference’s Code of Conduct, which applies to all other federal judges, to Supreme Court justices.  This would allow the public to access more timely and detailed information when an outside group wants to have a justice participate in a conference, such as the funders of the conference;
  • require the justices to simply publicly disclose their reasoning behind a recusal when they withdraw from a case;
  • require the Court to develop a process for parties to a case before the Court to request a decision from the Court, or a panel of the Court, regarding the potential conflict of interest of a particular Justice.”

If this bill was successful in passing through the Republican controlled House and Democratic controlled Senate, which would be a tough assignment; the Supreme Court Justices would be breaking the law if they continued to attend and participate in political fund raisers.  Canon 5 of The Judicial Conference’s Code of Ethics precludes a judge from being involved in any political activity.

The first question that I would have is how would this law, if passed, actually be enforced against any  Justice?  Would this legislation make it easier to impeach a justice who refuses to live up to the ethics requirements laid out in the Judicial Conference’s Code of Ethics?   Can a Justice and his or her vote be removed from a decision if they are found to be in violation of the ethical rules after the decision is rendered? 

Maybe the question that really should be asked first is whether there is even a need for this legislation?  All of these are questions that need to be answered, but the subject legislation has to make it through the House and Senate first and that is one tall order.  How do you see it?

Sources:  Think Progress;  Judicial Conference Code of Ethics; Congressman Chris Murphy.

Respectfully submitted by Lawrence Rafferty, (rafflaw), Guest Blogger

39 thoughts on “Ethics and The Supreme Court”

  1. Buddha Is Watching Skeptically

    Who wants to lay bets the Roberts SCOTUS will cry unconstitutional violation of the Separation of Power doctrine if pushed?

    Anyone?

  2. Elaine thanks for the link to the Common Cause letter. Blouise, You are probably right that it will be difficult for this legislation to pass, but why wouldn’t the tea party be for it? It promises everyone a fair shake. It only asks the Supreme Court to follow the same rules that every other Federal judge has to follow.

  3. Here’s a link to the letter that Bob Edgar, the President and CEO of Common Cause, sent to Eric Holder:
    http://www.commoncause.org/site/apps/nlnet/content2.aspx?c=dkLNK1MQIwG&b=4773617&ct=9039331

    Excerpt from the letter:

    Summary and Request for Formal Action

    For all of the above stated reasons, we believe that the public interest requires a full investigation by the Justice Department into, and public reporting of, potential grounds for disqualifying Justices Thomas and Scalia from the Citizens United case.

    If the Department finds that “a reasonable person who knew the circumstances would question” either justice’s impartiality, § 455(a) requires disqualification. Tucker, 78 F.3d at 1324 (disqualifying a judge based on his relationship with President and Hillary Clinton, who had expressed public support for the defendant). Similarly, a finding that Ginny Thomas had an “interest that could be substantially affected by the outcome” of Citizens United requires disqualification of Justice Thomas under § 455(b). Given that the facts supporting an appearance of bias were not publicly known at the time of the decision, the appropriate remedy for either violation is for the Department to file a motion with the Court to vacate the judgment. Liljeberg, 486 U.S. at 867.

    Justice Stevens, writing for the Court in Liljeberg, had the wisdom to predict that the courts’ “willingness to enforce § 455 may prevent a substantial injustice in some future case by encouraging a judge or litigant to more carefully examine possible grounds for disqualification and to promptly disclose them when discovered.” Id. at 868. “The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.” Id. at 869-70 (quoting Public Utilities Comm’n of D.C. v. Pollak, 343 U.S. 451, 466-67 (1952).

    Avoiding bias in a case that affects every voter in our democracy is critical, both to prevent injustice and to avoid further damaging the public’s confidence in our judicial system and the rule of law. We respectfully request a meeting with you at your earliest convenience to discuss these concerns, and urge you to take prompt action to address this important matter.

  4. I really wanted to hear common causes side,but like you say typical matthews style,interupt and talk over your guest.

  5. I believe I understand the motivation behind Representative Murphy’s bill but I’m not at all certain it will pass or even if it did if it would be at all effective.

    However, there is one thing most effective about the bill and that is the discussion it encourages and the light said discussion throws upon the court.

    Like most American Corporations, the Supreme Court is out of control and fast becoming a danger to the survival of our democracy and our nation.

  6. eniobob,

    I watched Matthews’ interview with the gentleman from Common Cause the other night. Unfortunately, in true Matthews’ fashion, he kept interrupting the man from Common Cause who had a difficult time explaining the situation because of the constant interruptions.

  7. It is always so cute when people upending the Constitution and a civilization wring their hands about ethics,decorum, and propriety.

  9. BTW:
    I should have stated that matthews is interviewing the Gentleman from common cause and their gripe with Justice Thomas.

  10. Lotta,
    I don’t know if the chief justice can do anything to curb ethics abuses by any of the justices. Besides, I don’t think Justice Roberts disagrees with Scalia and Thomas that they should be able to flaunt ethical guidelines.

  11. Rafflaw, keeping Scalia in line, Isn’t that why the Chief Justice gets to hold the gavel? 🙂

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  18. Would it need to be a matter of concern or law if the Chief Justice was doing his job?

    Rafflaw, good question, a law like this would make a good political cudgel if the answer was in the affirmative and I’m not sure I’d like to see that.

  19. AY,
    I think the Canons of ethics and Rep.Murphy’s bill suggest ways to handle a conflict of interest, but I was also interested if a conflict of interest under this legislation rise to the level of a high crime and misdemeanor in order to impeach a Justice. I don’t have the answer to that question.

  20. Poor US….. Is the answer rafflaw…. Impeach the offenders….. The US Constitution spells it out…. Something like good behavior….

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