The Justices and the Absence of a Binding Ethics Code: More Reasons Why the Court is not a Court

By Eric Segall

For over thirty years, I have had numerous personal and professional relationships with state court and lower federal court judges. The vast majority of them take their ethical responsibilities seriously, especially when it comes to accepting gifts from people with interests before them and deciding whom they may socialize with if they fear people may be seeking to influence them. Various state and federal ethics codes bind these judges, but in my experience, most judges simply think it is part of the judicial role to avoid, what virtually all judicial ethics codes call the "appearance of impropriety." That standard is codified in the Official Code of Conduct rules applying to "United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges." The federal judges not covered by this Code are, of course, the Justices of the United States Supreme Court.

Canon Two of the Official Code of Conduct says the following:

Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities

(A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge....

Again, it has been my experience that most judges abide by these rules not just because they have to but because a vital part of a judge's responsibilities is to avoid any public perception that they are beholden to special or private interests. Now let's talk about the Supreme Court of the United States.

The New York Times reported last week about Justice Alito's social connections to a couple (the Wrights) who donated substantial money to far right religious groups, and that he, along with the late Justice Scalia, had given them their reserved seats at the Hobby Lobby oral argument. The couple donated money to an organization run by the Reverend Rob Schenck, a one-time anti-choice advocate. Schenck told the Times that he:

recruited wealthy donors like Mrs. Wright and her husband, Donald, encouraging them to invite some of the justices to meals, to their vacation homes or to private clubs. He advised allies to contribute money to the Supreme Court Historical Society and then mingle with justices at its functions. He ingratiated himself with court officials who could help give him access, records show.

These allegations are troubling and likely raise questions about Alito's impartiality when it comes to cases raising religious issues, such as Hobby Lobby. But it gets much worse. As I previously wrote on this blog, Justice Alito has given numerous speeches to religious organizations lamenting what he calls the threat to "religious liberty" allegedly caused by, among other things, LGBTQ rights. In one of those speeches, Alito even said the following:  "We are likely to see pitched battles in courts and Congress, state legislatures and town halls. But the most important fight is for the hearts and minds of our fellow Americans. It is up to all of us to evangelize our fellow Americans about the issue of religious freedom."

If the Judicial Code of Conduct applied to the Justices, a strong case could be made that Alito has violated Canon 2 by his continuing public statements about his perceived threats to religious liberty, coupled with his socializing with groups whose agenda includes strengthening religious supremacy in America. Alito denies Schenck's allegation that he leaked the Hobby Lobby opinion but he does not deny the social relationships outlined in the Times piece, including the giving of his seat to a donor to a religious group with strong interests in the Hobby Lobby case. Alito's behavior shows with urgency the need for a binding ethics code for the Justices.

But even apart from Alito's behavior, there is substantial evidence that many of the Justices would have violated the Code of Judicial Conduct's rules about the appearance of impropriety if the Code applied to them. Back in the middle/late 2000's, both Justice Thomas and Scalia went to Koch Brothers retreats that were billed as political gatherings. Although the Justices are allowed to participate in educational and civic events, and probably should, it is far from clear what they were were doing at those retreats, and they and the Court consistently refused to answer questions about their activities there. As one ethics specialist said:

I know I would be curious to know exactly what forums the Justices went to. Obviously they could not go to a strategy session about how to elect more Republicans. On the other hand if it was a forum on the meaning of the First Amendment and it didn't involve strategy or fundraising a Justice could appear... It's fascinating and it merits more reporting."

The problem, of course, is that no law or code formally covers the Justices, so even if they did attend a session about "how to elect more Republicans," short of impeachment, there is no procedure to hold the Justices accountable for unethical judicial conduct. 

It is not just the conservative justices who have engaged in questionable off-the-court activities. National Public Radio's Nina Totenberg, one of the best and most senior Supreme Court correspondents, had a long-time close friendship with Justice Ruth Bader Ginsburg and wrote a wonderful essay about her after she passed. Even NPR itself, after-the-fact, recognized the possible ethical issues involved in this friendship:

As one of American journalism's most respected legal affairs and Supreme Court reporters, Totenberg's long history of working with Ginsburg is not in and of itself surprising. Great reporters have great sources, and often know them well. But the touching essay reveals a double-edged sword: Totenberg's access to Ginsburg yields deep reporting that has well-served NPR audiences for years. But the closeness of that Totenberg-Ginsburg relationship was never fully disclosed, and raises the question of whether journalistic independence — also vital to NPR consumers — was as solid as listeners have a right to expect.

Other scholars have also raised issues about the relationship between these two women, especially after Ginsburg made some ill-suited comments about candidate Donald Trump and then Totenberg interviewed her about them and, though Ginsburg apologized, she was not asked whether she would recuse in cases involving Trump. Again, whether or not this relationship created an appearance of impropriety is less important than the fact that a standard so uniformly used across America's judicial landscape does not even apply to the Justices. 

One final example should suffice to make the point. Back in 2012, it was crystal clear (to me anyway) that Justice Kagan should recuse herself from the important Obama Care case NFIB v. Sebelius. As I wrote at the time, Justice Kagan was the Solicitor General when the Affordable Care Act passed Congress and her own office litigated the case in the lower courts. It should be obvious that a judge cannot rule on a case that she worked on as a lawyer. Although Kagan claimed she separated herself from any work on the case, her Deputy was still her Deputy and he argued the case in the lower courts and obviously would not do so in a way that displeased his boss. Additionally, why did Kagan pick that one case, and only that case, to formally not work on while she was Solicitor General? A non-party made a formal motion for her to recuse, which was denied without comment or explanation.

Again, whether or not you agree with me about the Kagan recusal question is less important than understanding there are no formally binding ethics or recusal rules that the Justices must follow. That every judge in America is bound by ethics rules other than the Justices certainly frees them to act in ways that at the very least push the boundaries of judicial ethics. There is simply no persuasive justification for the lack of such binding rules other than possibly that notion that the Justices are not really judges so it would be inconsistent to apply judicial norms to them. But if that's the reason, then we need to see the Supreme "Court" in a very different way than we view other courts, something I have been espousing for a very long time.