Who Decides What's Good Behavior?
Dear Leading Ladies,
Is anyone else gobsmacked to learn that our Supreme Court Justices are not required to abide by any written ethics rules, not even those imposed on all other federal judges?
How and why did this ever come to pass? We think it’s worth taking a closer look.
Needless to say, the matter came to our attention because of the recent exposés about Supreme Court Justice Clarence Thomas and the gifts he received from billionaire Republican donor Harlan Crow – vacations, the purchase of his mother’s home, tuition for a child in his guardianship, and more. And, now there’s the news that Supreme Court Justice Samuel Alito took a fishing trip to Alaska with billionaire donors, including hedge fund manager Paul Singer, who later had business before the court. Singer provided Alito with a private jet to fly him across the country to Alaska, an expense valued at $100,000. Alito did not disclose the transportation or fishing trip, nor did he recuse himself from cases before the court in which Singer was involved.
Were either Justice Thomas or Justice Alito required to report these goings on? Depends on whom you talk to.
Chief justices left to judge themselves
Turns out there is a Code of Conduct for Federal Judges which is published and updated by the Judicial Conference of the United States, the national policy-making office of the federal court system. According to the National Constitution Center, Chief Justice John G. Roberts, Jr. presides over the conference whose members include the chief judges of every federal circuit court, and other federal judges. “The Code of Conduct provides guidance for judges on issues of judicial integrity and independence, judicial diligence and impartiality, permissible extra-judicial activities, and the avoidance of impropriety or even its appearance,” the conference says.
Here’s the good part. The federal code applies to United States circuit judges, district judges, the Court of International Trade judges, the Court of Federal Claims judges, bankruptcy judges, and magistrate judges but NOT to the Justices of the Supreme Court. That’s right. Supreme Court Justices are not required to observe the code. The code of ethics for federal judges prevents judges from hearing cases in which they have either personal knowledge of the disputed facts, a personal bias, earlier involvement as a lawyer, or a financial interest. Judges must be impartial, they cannot accept gifts or support candidates, and they must display complete transparency. A complete explanation can be found here.
To repeat: Supreme Court Justices are not compelled to abide by this code.
According to the Constitution, Supreme Court Justices serve as long as they exhibit “good behavior,” or face possible impeachment and removal for “treason, bribery, or other high crimes and misdemeanors." In fact, Congress can impeach a Supreme Court judge, but has only done so once, in 1805, and unsuccessfully.
So, federal judges have to adhere to a strict code of ethics, but Supreme Court Justices do not. What’s really rich is that the Supreme Court Justices decide individually, on their own, what constitutes good behavior. They need not even consult one another!
Source is Senate Judiciary Committee
What happened to checks and balances?
And, just to review, we know we have three branches of government: executive, legislative, and judicial. And the Founding Fathers designed a system of checks and balances. As the New York Times Editorial Board recently wrote, “The ‘separation of powers’ was never meant to allow each branch the license to act without any involvement by the others. Rather, the American system of government is expressly designed for each branch to check the power of the others. A president can veto a bill passed by Congress. The Supreme Court can strike down an executive order or federal law. And Congress can regulate the size, jurisdiction and other administrative aspects of the Supreme Court, including judicial ethics, as it has going back to the first judiciary Act in 1789 – a law that was passed, notably by a Congress that included many of the framers of the Constitution itself.”
Within each branch, there are also checks. So, for example, if you work in the Executive branch, you have to clear all sorts of things through an ethics officer concerning gifts you may receive and gifts you must disclose. Yet, the Supreme Court Justices are left to determine for themselves what is ethical and what is not, what they are compelled to report and what they may not. What constitutes good behavior and what does not.
The Times contends, and we agree, the Congress has not lived up to this “coequal status in the federal government, avoiding even mild confrontation with the Supreme Court,” by, among other things, not “forcing it to adopt an ethics code.” And, clearly, the Supreme Court has long been reluctant to adopt an ethics code, citing all kinds of reasons about their special status as arbiters of jurisprudence.
What could a code of ethics for the SCJ look like?
The Times editorial board suggests that an ethics code for Supreme Court Justices should require “frequent and detailed reporting of all travel and accommodations they received – including donor names, dollar amounts and description of gifts,” as well as the sale of real estate. Clear and consistent rules about recusement should be included, and the Supreme Court should have its own ethics officer “to field complaints from the public and advise the justices on their obligations in specific circumstances.”
Finally, the matter of accountability and enforcement is important but difficult to put in place, the Times’ writers acknowledge. However, having a code, an ethics officer, and a system for investigating and reporting unethical behavior, says the Times editorial board, “would prove a constant reminder to the justices that they work for the American people. That would help foster a culture of accountability and transparency for a small group of powerful officials who have long avoided both.”
Hardly seems like too much to ask of our Supreme Court Justices, does it?
Senate Bill 325 and House of Representative Bill 927, the Supreme Court Ethics Act, is currently before the House and Senate. Read about them and voice your support to your US Reps and Senators.
Let’s keep our Justices on the side of justice instead of flying on private jets with billionaires!
Judy (she, her, hers)
Therese (she, her, hers)
Didi (she, her, hers)
Leading Ladies Executive Team
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