Below 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:
In 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.
Demo Man
You rang? (You forgot my other middle name “no”.) Does your court packing plan mean that Donald Trump gets to pack up Ginsburg in a suitcase, send her to Trump Tower to be imprisoned, and appoint Scalia’s ghost to take her place?
Time to re-evaluate the SC. For efficiency, cost effectiveness & swift processing of cases.
Judge & jury come to you like pizza delivery. Precise, concise, short, sweet & to the point.
“the Supreme Court is the only part of our government that is not subject to any enforceable code of ethics.”
That “enforceable” code has done what exactly? As KC said, we are long past constitutional government.
The American people have little hope to the peaceful security of our unalienable rights when all that stands between them and this utilitarian government is a code of ethics.
Imagine how worse this would be if there were cameras in SCOTUS.
More Evidence: Obama Funding War Crimes in 2005-2007
More reasons Barry Soetoro aka Barack Obama should be in prison
http://www.BuenaVistaMall.com/WarFunding.htm
Obama was a War Criminal back in 2005-2007 voting War Funding for Wars of Aggression in Iraq, Afghanistan and other countries.
Upon entering the Senate in 2005 through April 2007 Obama voted for every war-funding bill that came before him. Obama, despite his anti-war rhetoric, cast at least 10 votes for war-funding bills. Funding a War of Aggression is a War Crime, each vote was a War Crime. Obama and co-conspirators are guilty in the deaths and maiming of hundreds of thousands of men, women and children. Some estimate as many as 1,500,000 Iraqis have died due to the US-led illegal war. Obama approved funds which were used to buy bombs and bullets to murder and maim tens of thousands of Iraqi and Afghan children – in your name. Anybody who supported or supports Obama has blood on their hands.
Nineteen Justices. Turley Court Packing Plan is just in time for Donald Duck Trump.
These Supreme Court Criminals should have indicted the Bush / Obama administrations & Israel for 9/11 and War Crimes years ago. Roberts is one of the Biggest Traitors in American History for swearing in Usurper Obama. Obama is not the president, he never was. Zionist Liar Obama is one of the Biggest Criminals in World History. Obama should be Arrested for Mass Murder, War Crimes, Innumerable Criminal Offenses. He should have been arrested years ago! The American justice system is a sham!
Table of Evidence regarding Obama’s Forgery and Fraud of Identification;
http://www.BuenaVistaMall.com/Table-of-evidence-of-forgery-fraud-and-fabrication-in-Obamas-IDs1.pdf
http://buenavistamall.com/idiot3.jpg
I wish Justice Ginsburg would have not commented on Turmp however there was nothing unconstitutional or unethical about what she said. In fact, she was exercising her First Amendment right. I assume even nasty liberal Supreme Court Justices have such rights.
It is amazing to see the right wing getting all upset over this when they have no problem with the “party boys” who actually party together while one of the “party boys” is actually before the court as a defendant. But as usual one set of rules for one privilege group of people and another for the rest.
Seems to me CK07 missed the point which was to giver a few examples of the Supremes’ ethical lapses, which underscores a broader question of the near collapse of ethical standards throughout the country. Honor, ethics and morality are not just buzz words, they are the bedrock for which this great Nation stands without which we will find ourselves in anarchy.
Prof. Turley, you still seem to believe in the Constitution.
We are post-Constitutional now.
And therefore post-Ethics.
Pretty soon we’ll have a “coup,” followed by a massive purge of folks who once held to that document.
KCFleming – Hillary wants an amendment in her first 30 days getting rid of Citizens United. We have to have a constitution just to see how that works out (assuming she is elected).
I noticed you left out Thomas’ refusal to recuse himself from ACA related decisions despite household income for anti-healthcare lobbying, and Scalia’s refusal to recuse himself from decisions regarding Cheney despite going hunting with him or the Walmart v. Dukes issue. Not to play partisan but as with Connor on Bush v Gore I view these examples as unethical more because they directly relate to cases. Ginsburg should stay out of the political foray but despite her lack of love for Trump if a decision ever came up regarding his presidency a la Gore v Bush it would be on her to recuse herself and I have no doubt she would. You can talk about a lack of ethical standards on one side vs the other until you’re blue in the face however liberals have typically been creamed for ethical or perceived ethical violations, whether Kieth Olberman being fired for the same campaign contributions Fox reporters have been shown to make, Brokaw’s suspension for grandiose claims, Susan Rice’s black listing for making uninformed statements on Benghazi (when many on the right should have been pummeled far worse for lies on Iraq etc yet none were) or Clinton being skewered for years over claims regarding his sexual affairs by hypocrites who were often doing the same. I get it the last was under oath and Ginsburg is a justice who should be held to a higher standard. It’s just when the shoe is on the other foot I never hear the left press as hard or the right seem to care in the very least
What is wrong with these? http://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges
At age 83, why not retire & enjoy life with family, travel & hobbies?
Ginsburg is a socialite party girl dressed in a black robe
Ginsburg, a Clinton appointee who traditionally votes with the court’s liberal wing and whose 120-year-old parents explicitly told her not to have any friends over, confirmed that she waited until her mother and father had pulled out of the driveway before texting “it’s on” to her fellow justices and telling them to “get ready to drink [their] asses off.”
“My dad is seriously crazy if he thinks I’m not going to throw an epic rager when I have the house to myself all weekend,” said Ginsburg, whose father, a furrier and haberdasher by trade, reportedly wrote down the mileage on his 1928 Ford Model A so he would know if his daughter took it out for a spin. “As far as I’m concerned, when the cats are away, the mice will play.”
Well, she hit the nail on the head about Trump.!
Who needs a constitutional amendment? All you need is a Congress that means business. Pass a law setting forth ethical standards, and get a President who will sign it. Impeach the first Justice who breaches the new law. The rest of the SCOTUS will get the message real quick. If the SCOTUS indicates that they are not bound by the law, then sack the Chief Justice. Do so until the SCOTUS realizes they don’t work for themselves, and they are not laws unto themselves.
Lots of times you get poop, because you put up with poop. Our country has been putting up with poop because many politicians are making money under the status quo. Sooo, what I outlined above, while feasible and effective, will never happen.
Squeeky Fromm
Girl Reporter
Squeeky – the Supremes would just find the law unconstitutional.
So, Turley, propose a constitutional amendment.
SCOTUS apparently operates under a different system despite being public servants. I was astonished when I read an article in The New Yorker back in 2014 which exposed that: “The papers of Supreme Court Justices are not public records; they’re private property. The decision whether to make these documents available is entirely at the discretion of the Justices and their heirs and executors. They can shred them; they can burn them; they can use them as placemats. Texts vanish; e-mails are deleted. The Court has no policies or guidelines for secretaries and clerks about what to keep and what to throw away. Some Justices have destroyed virtually their entire documentary trail; others have made a point of tossing their conference notes.”
http://www.newyorker.com/magazine/2014/12/01/great-paper-caper
Ain’t quite that simple Squeeky. There are also people who jump up and down about standards but think they are for thee and not for me. Seems to me that it where the Supremes, as an institution, stand right now.
And then there is the question of what standards to use. Which is where most of the action is. Be careful when it comes to religion in schools. I hear it is big in Iran. There’s plenty to learn from comparative religion classes, but that’s not what folks like the Ayatollah and Roy Moore want.
I do not see, without a change in the Constitution, how you could enforce an ethics model on the SC.
There has been a battle on against “standards” of nearly every sort for decades now. Some would say millenia. This is just a different manifestation of the same battle that has been going on with religion in schools, normal sexual conduct, and gender. On one side you have standards of behavior, and on the other side you have people who simply wish to do whatever it is they wish to do.
Squeeky Fromm
Girl Reporter