Ethics, the law, and the Supreme Court (Part 1)
Common Cause’s decision to publicly raise questions about possible conflicts of interest and/or ethical lapses involving Supreme Court Justices Antonin Scalia and Clarence Thomas has taken us into a mysterious (to laymen, anyway) part of the legal universe. In this post, and one to follow, we’ll try to explore it.
“Will you please write something explaining for lay people, why the Supreme Court, unlike the rest of the federal judiciary, has no explicit code of ethics?” one Facebook friend asked this week. “On one hand, people are saying we can impeach Supreme Court justices if we just put enough pressure on. And on the other hand people are saying the (justices) didn’t actually break any laws, because there are no laws restricting what they can do.”
These are interesting questions. Let’s take them in order.
The U.S. Judicial Conference, an administrative agency headed by the chief justice of the Supreme Court, has published a code of conduct that serves as a kind of rulebook for federal judges. Among other things, it tells judges to disqualify, or “recuse,” themselves from cases where their neutrality might reasonably be questioned and to stay out of politics.
Those rules are particularly interesting to Common Cause these days. We’ve received and publicized information that raises doubts about the impartiality of Justices Antonin Scalia and Clarence Thomas in a landmark campaign finance case, Citizens United v. Federal Election Commission. We believe both justices may have participated in political strategy and fundraising sessions hosted by Koch Industries, the nation’s second largest privately-held corporation, and that Justice Thomas’s wife, Ginni, had a financial interest in the outcome of the case as CEO of a group she formed to raise and spend corporate money on the 2010 elections.
We think those activities may violate the code of conduct. But while the code often is cited as a guide for all judges, it does not apply to the Supreme Court.
However the justices are subject to a law, passed in 1974, that parallels some parts of the code. In particular, the law instructs every federal judge to recuse himself or herself in any case in which his or her “impartiality might reasonably be questioned” and if they have a financial conflict of interests.
The Supreme Court and the federal circuit courts have applied this law to order the recusal of lower court judges. While individual justices on the Supreme Court routinely recuse themselves when they decide a case presents them with a conflict of interests, we’ve found no case in which someone formally challenged a justice’s failure to recuse himself or herself or where the full court ordered the recusal of a particular member.
We decided to focus public attention on the situation by asking the Department of Justice, which is charged with enforcing all federal laws, to look into the possible Scalia and Thomas conflicts of interest in Citizens United. If our information proves correct, the department, which represented the FEC in the case, could seek to have it re-opened and ask the full court to order Thomas and Scalia to step aside.
We’ve written two letters on this subject to Attorney General Eric Holder. The first asked him to use the power of his office and its position as lawyer for the FEC to initiate a review of whether there are sufficient grounds to warrant recusal of Justices Scalia and Thomas; the second seeks a meeting to discuss our concerns. At our urging, thousands of people have signed petitions urging him to act. We hope to deliver those petitions soon and we’ll keep you posted on the response.
—This post was written by Arn Pearson, an attorney who serves as Common Cause’s vice president for programs, and Dale Eisman, senior writer/researcher.