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. @glenn

    In case some meatheads don’t understand what you are talking about, let me translate your statement for them!

    “Hal and Sam and meatheads: Professor Turley writes about a lot of things that get ignored on main stream media type outlets, and liberal/leftist echo chambers! He sometimes has opinions that differ from the rigid liberal/leftist narrative. He is even sooo dastardly that he points out when liberals/leftists do bad things! Which is a big no-no!”

    You’re welcome! It’s free, so you don’t owe me anything!

    Squeeky Fromm
    Girl Reporter

  2. Hal and Sam, Ole Johnny boy only throws out the red meat for ideas that only suit the meatheads..

  3. Hal,

    I too would very much like to know where JT stands on the email outcome. His silence is surprising, given his very active coverage of the issue. I hope he is just mustering his thoughts in preparation for some learned commentary.

  4. Hey Jon

    I know you were on vacation but……now that you back…..and thank for the petty pics…..how about some comments on Clinton. You know the email job. I checked each day but vacation are not for working I understand but you backkkkkk. Where do you stand????? Steady readers would like to know at least one.
    Me.

  5. Olly,

    There is a lot of truth in your comment and there has never been real enforcement for a constitutional rule of law system to exist longterm, but voters do have tremendous power. If that system is the goal voters want to move closer to, why vote for a candidate that promises, in public. to violate that system and his oath to uphold that system of government?

    Trump may unintentionally weaken the 2nd Amendment as well. As Ben Franklin warned not to trade Liberty for the perception of security. If Trump violates and weakens the other constitutional amendments to supposedly make us safer, it weakens the 2nd Amendment as well.

    If a president can scapegoat all Americans of an unpopular faith, he can do the same to Baptists, Presbyterians or Catholics. Trump just needs to think before he proposes violating his oath of office if he were elected.

  6. RB,
    “Trump proposes illegally violating the 1st, 4th, 5th, 6th, 8th and 14th Amendments…”

    How is that worse than current and previous administrations/courts “legally” violating those amendments?

  7. The problem of politicians ignoring the rule of law may be why we have Donald Trump as a nominee for President. He is not a politician. He is a businessman. He looks at the job as proper use of the people’s money. He is not required to put only lawyers on the Court. Comments on the Professor’s
    C-Span is a sample of the deterioration of our education system. I gave my Granddaughter a book on the Constitution and the Federalist Papers on her 18th birthday. We plan to have discussions about the Constitution as she makes her first Presidential vote. Parents should not assume school teaches an unbiased view of our Constitution. Parents must be sure their children understand the law and their duty as a citizen to be an educated voter.

  8. If you are so naive and/or in denial so as to still believe the USA is ruled by law, watch this high quality 45 minute video to fix that silly pipe dream. I promise, no hyperbole.

    Primarily the video comprises: on one side of the screen the mouths moving from Lonnie Brewer (DOJ financial crimes chief), Brewer’s next in charge, and the AG…on the other side of the screen are images of the text of relevant criminal financial laws (directly contradicting the DOJ talking points).

    This is the single most powerful video I have viewed for the intended purpose.

    The first stage of a bloodless coup is to nullify the law.

    “The Veneer of Justice In A Kingdom of Crime:”

  9. Ruth Bader Ginsberg Shut Up!
    Ruthy Ginsberg Shut Up!
    \

    Just substitute the name– this from Allan Sherman, from years back:

    Little David Susskind-
    Shut up
    Please don’t talk; please don’t talk
    Little David Susskind-
    Me first
    Then you’ll talk

  10. Trump has some legitimate “constitutional” (not partisan) problems with many of his proposals. It’s important not to confuse that for politics. Trump proposes illegally violating the 1st, 4th, 5th, 6th, 8th and 14th Amendments if elected along with federal law and international law including the Geneva Conventions and Reagan’s Convention Against Torture. Law breaking is not politics.

    Recently even the non-partisan ACLU essentially issued a “constitutional emergency preparedness plan” on what to do if Trump were to violate his oath of office once elected – as he promises to do.

    Trump proposes to be disloyal to his oath of office to follow the U.S. Constitution. Is it political to criticize his promises to break the law and betray his supreme oath of office?

    1. RB – since Obama has been disloyal to his oath of office and Hillary has been disloyal to her oath of office, I find it rather funny (peculiar) that you think 1) that the ACLU is neutral and 2) they should suddenly be worried about Crooked Hillary.

  11. All in favor say: Eye. Opposed say No. The Eyes have it. The eyes are on the prize.

  12. I would agree with a 19 member court if they all had to be from schools other than Harvard and Yale. Give us 18 Hugo Blacks and one Scalia.

    Perhaps JT wants them all to be from former Confederate States. Red States or Repubican now. JT wants to be on the bench.

  13. JR: SCOTUS is arguably comprised of civil officers, so they can be impeached like Clinton was. (Hopefully, we can make that a couple of bookends by impeaching his wife, too.)

    Article III, sec. 1, states, “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, . . . Article II, sec. 4, states that [t]he President, Vice-President, and civil officers of the United States, shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors. This implies that “good behaviour” means anything other than treason, bribery, or other high crimes and misdemeanors. RBG could not be removed for calling Trump a “faker,” and she’s for all intents and purposes a sovereign unless she does something related to moral turpitude as a threshold.

    The definition of civil officer is defined in Article II (relating to the Executive branch) and although there’s nothing in Article III (relating to the judiciary) regarding whether sitting Justices are civil officers, the term would seem to include SCOTUS:

    Civil officers of the United States are those who hold their appointments under the national government, whether their duties are executive or judicial, in the highest or the lowest departments of the government, with the exception of officers of the army and navy. (Rawle on the Const. 213; 2 Story, Const. Sec. 790; a senator of the United States, it was decided, was not a civil officer, within the meaning of this clause in the constitution. Senate Journals, 10th January, 1799; 4 Tuck. Bl. Com. Appx. 57, 58; Rawle, Const. 213; Serg. on Const. Law, 376; Story, Const. Sec. 791.)

    http://legal-dictionary.thefreedictionary.com/civil+officer

  14. Strange that Turley never thought a code of ethics was necessary when Justice Scalia was making a shambles of things with his outrageous public speeches.

    But, then, Turley has changed. And not for the better.

  15. Every time a judge opens their mouth they tarnish the courts. The misconduct of judges has become a common event, the entire system has become irreparably tarnished and is no longer of any moral consequence.

  16. Autumn, thanks for the information on SCOTUS’s private versus public property. I didn’t know this, although it doesn’t bother me. If there’s need to subpoena private documents, it’s hard for me to believe they’d have any right to non-disclosure beyond anyone else’s.

  17. This passage from the Antifederalist Papers (referring to the Supreme Court) just is amazingly prescient:

    “There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

  18. TJ: I enjoyed the party-girl commentary. Ruth throws off the pumps, pulls, off her hair bow, does a pirouette, and sings a few lines every time she walks past J. Alito and J. Thomas:

    My baby moves at midnight
    Goes right on till the dawn
    My woman takes me higher
    My woman keeps me warm . . .

  19. What David Benson wrote. The conduct of the members of the Supreme Court, who are for all practical purposes sovereigns, is not susceptible to legislative whim under the concept of judicial review. Either impeach her, or you’ll need a constitutional amendment to force a judicial code of ethics on the Court.

    Prof. Turley writes, “She embodies what I have called the age of the ‘celebrity justice.’” That’s really over the top, especially in light of 30 years of J. Scalia.

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