THE GINSBURG CONTROVERSY: IT IS TIME TO IMPOSE A CODE OF ETHICS ON OUR HIGHEST COURT

440px-Supreme_Court_US_2010Below is my column on Sunday in the Chicago Tribune on the controversy involving Justice Ruth Bader Ginsburg. Ginsburg’s expression of “regret” over “ill-advised” statements may strike many as a bit short of an actual apology for what was facially unethical conduct. However, it was more than was required because nothing is required from a Supreme Court justice. That is the problem. Not the tirade against Trump. Not the criticism of Republicans in Congress. The real problem is that Ginsburg and her colleagues claim that the Code of Judicial Ethics is only binding on lesser jurists. Indeed, a majority of justices have been accused of ethical violations, but the Supreme Court is the only part of our government that is not subject to any enforceable code of ethics. Ginsburg’s apology should not detract attention from pressing need for reforms of our Court, including the creation of an enforceable ethical code for the justices. Once again, we have addressed only the latest manifestation of the problem on the Court rather than the underlying cause: the absence of an enforceable code of ethics for the justices. I have long advocated two primary reforms for the Court: the establishment of an enforceable code of ethics and the expansion of the Court to 19 members. What was disturbing recently during an appearance on the Washington Journal on C-Span was how many people argued against an enforceable code of ethics and just accepted that justices speak and act politically. While some people simply supported what Ginsburg had to say about Trump, others view the notion of an enforceable code of ethics as “naive” despite that fact that all other federal jurists comply with such a code. Below is the column:

225px-ruth_bader_ginsburg_scotus_photo_portraitIn her 23 years on the U.S. Supreme Court, Justice Ruth Bader Ginsburg has created a legacy of important opinions ranging from protections for the mentally disabled to gender discrimination to the use of international law. That legacy, however, is in jeopardy after a series of statements by Ginsburg criticizing Donald Trump and clearly opposed his candidacy for the presidency. In addition to labeling the Republican a “faker” and calling for him to turn over his tax returns, Ginsburg criticized Republicans in Congress for impeding President Barack Obama in his final year in office and all but endorsed the confirmation of Judge Merrick Garland for the high court.

While thrilling for many on the left, Ginsburg’s tirade was a facially unethical act and she has since apologized. Unfortunately, her statements are part of a checkered history of unethical conduct on the court. Indeed, a majority of Supreme Court justices have been accused of ethical violations, but they have created a type of immunity from the ethics code that is binding for lower court judges but not for the Supremes. Ginsburg’s apology should not detract attention from the need for creating an enforceable ethical code for the justices.

Ironically, Ginsburg mocked how Trump “really has an ego.” Yet there was no small degree of ego in her comments. She was fully aware that Canon 5 of the Code of Judicial Ethics says judges shall not “make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office.” Ginsburg has long been criticized for her penchant for speaking to ideologically supportive groups about issues before the court and hot-button topics. She embodies what I have called the age of the “celebrity justice.” Justices are increasingly embracing public personas and maintaining a type of ideological base in organizations on the right and the left. Where justices once spurred public speeches and spoke only through their opinions, various justices now go on speaking tours and hold media interviews like judicial rock stars.

The Supreme Court has long maintained that the Code of Judicial Ethics applies only to lesser jurists. Since the Supreme Court is expressly created by the Constitution rather than Congress, the justices maintain that the ethics system is the creation of Congress and enforced by lower court judges through their judicial conference. While insisting that they follow ethical principles, the ethics code remains merely advisory for the Supreme Court justices who claim to be the sole judges of their own conduct. That means the court is the only part of our federal government without an enforceable ethics code.

Instead of showing that they can voluntarily hold themselves to a higher standard, the justices have often honored the ethics code in the breach. At least five of the current justices have been accused of violations that would have been deemed ethical breaches for any other jurists. This includes three members (Chief Justice John Roberts and Justices Stephen Breyer and Samuel Alito) who have been accused of having financial interests in dozens of companies appearing before the court. The late Antonin Scalia, Clarence Thomas and Alito have all been accused of attending political fundraisers — something considered a serious violation for federal judges. Alito has repeatedly been criticized for attending political fundraisers but simply responded by saying that “it’s not important.” Justices also have accepted private plane travel and free trips that have raised ethical concerns.

They also have been accused of expressing political opinions. Alito was legitimately criticized in 2010 for expressing his disagreement with statements that President Obama made in a State of the Union address. Alito’s shaking of his head and mouthing “not true” was viewed by many as highly inappropriate and a violation of the long-standing tradition of justices attending addresses. Former Justice Sandra Day O’Connor shocked many when she reportedly exclaimed, “This is terrible” when CBS called Florida for Al Gore in the 2000 presidential election. She later voted to effectively give the state (and the election) to George W. Bush in Bush v. Gore. Yet Alito was responding to a criticism of the Supreme Court for its decision in Citizens United and O’Connor’s comment came in a private dinner party.

In the context of these violations, however, Ginsburg’s conduct stands out as nothing short of breathtaking. Even Democratic leaders denounced her statements. When this republic began, our courts were littered with political hacks who owed allegiance to Federalist or Jeffersonian interests. Our courts were merely extensions of politics by judicial means. One of our great achievements was the adoption of judicial ethical principles that maintained strict political neutrality and separation on the federal bench.

What Justice Ginsburg did was neither noble nor commendable. Her foray into politics undermined the integrity of the court and tarnished what was an inspiring judicial career. Congress should use this controversy to finally reform the court, including the establishment of an enforceable system of judicial ethics for our highest court.

Jonathan Turley is a law professor at George Washington University, where he teaches a course on the Constitution and the Supreme Court.

49 thoughts on “THE GINSBURG CONTROVERSY: IT IS TIME TO IMPOSE A CODE OF ETHICS ON OUR HIGHEST COURT

  1. Joe,
    My response did concern ethics and hypocrisy. Squeaky noted on one side you have standards and on the other you have people that do whatever feels good. It seems to me that the sides of who is held accountable for their actions have been confused. No one is talking about the letters between Blair and Bush about tricking the UN to enable our invasion of Iraq outside of the U.K. Yet our news cycle has been embroiled in a controversy over Benghazi for years now, one that saw the end to Susan Rice’s political aspirations for being sent on stage without knowing what she spoke of. You can’t impose ethical standards on speech from the left and ignore the same issues from the right and call yourself a moral society. Ginaburg spoke her mind and apologized for it. She has not been on the bench for a trial involving Trump, who said he would demand torture, ban people from this country based solely on religion and force our southern neighbor to build the Great Wall of America without any real specifics to his campaign besides it would make the country great again (and then said “I will be changing very rapidly, I’m very capable of changing”.) She publically called him a faker. While ill advised, unless she’s deciding a case involving him and refusing to recuse herself why should this be viewed as more unethical than Scalia’s comments while still sitting and voting on the ACA? His friendship with Dick Cheney while sitting on cases linked to Bush? Dukes v wal-mart? Thomas’s lack of recusal on the ACA when his wife is getting paid to speak out against it etc? Those are truly unethical examples. Yet none of them created the news cycle this did. The right can do the exact same if not worse and have it ignored. I’m not accusing Turley of partisanship, I think he’s fairly centrist. I’m accusing the right of hypocrisy however and screaming very loudly and for a long time whenever the left does anything wrong in order to keep the media talking about it, to give the illusion that what squeeky implied is true.

  2. Paul Schulte:

    That’s not what I said. If the goal is a constitutional “rule of law” system of government, as the Founding Fathers wanted, no human being is above the U.S. Constitution – including presidents and members of Congress.

    The U.S. Constitution is a wartime charter designed to be followed even during wartime.The Constitution was ratified during wartime between the Revolutionary War and America!s 2nd Revolutionary War, the War of 1812.

    It was a far more dangerous era than today when the Framers designed our constitutional “rule of law” system. The United States had one of the weakest governments in the world fighting the world’s greatest superpower, England, which had the mightiest army on Earth that went in to defeat Napolean.

    In other words, George Bush and members of Congress didn’t have the authority to torture anyone or violate the U.S, Constitution. Obama didn’t have the authority to exploit the Espionage Act of 1917 to use against journalists and legal whistleblowers. Neither president has authority to detain or imprison persons not captured on any battlefield and not taking up arms against the United States.

    Donald Trump doesn’t have the constitutional authority to implement many of his proposals. In a constitutional “rule of law” system, nobody is above the supreme law of the land (Article VI).

  3. Paul Schulte:

    The ACLU tracks the actual “voting record” of members of Congress and state legislatures on civil liberties and constitutional issues. They grade each legislator based on their actual voting record (ex: warrantless spying, Patriot Act, etc).

    The ACLU then creates a longterm profile of their voting record covering several years. Anyone can look up any member of Congress to see what their scores are on upholding constitutional and civil liberties issues. There is also detailed background information about each vote that was used to reach a particular legislator’s score.

    Both Republicans and Democrats can achieve a high score if they vote to uphold their oath of office – which includes the Bill of Rights. Those that didn’t keep their supreme loyalty oath after 9/11 generally have lower scores.

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