Ethics: The Unfinished Business in the Supreme Court’s New Term
It’s the first Monday in October, so the big news outlets and legal blogs were full over the weekend of stories and posts on the opening of the Supreme Court’s 2012-13 term.
We’re told that the court’s docket is dominated by civil rights issues: How much can colleges consider race in deciding which students they’ll admit? Can the federal government deny health benefits to married gay couples? Can the federal government continue to require that states with a history of discriminating against black voters get prior approval before changing their voting laws?
Important questions all, but the justices have one major bit of unfinished business that’s getting almost no attention, and deserves plenty: the court’s own ethics.
The new term begins with the court still refusing to formally adopt for itself the ethical code it enforces at every other level of the federal judiciary. The Code of Conduct for U.S. Judges instructs judges to maintain their independence by acting “without fear or favor.” It tells judges to disqualify themselves from cases in which they or members of their family have a personal interest, to take care to obey laws requiring them to disclose their personal finances and to avoid any involvement in partisan politics, among other things.
Several members of the court have declared publicly that they follow the Code, but they and Chief Justice John Roberts have resisted calls that the court formally adopt it and create a mechanism to enforce it. Each justice is thus left to his or her own decisions about when he or she should be disqualified — recused — from a case, or how openly he or she can be associated with political issues or candidates.
The Roberts court would seem to be in need of the Code’s guidance. Justice Clarence Thomas was embarrassed in 2011 by his repeated failure to properly file annual financial disclosures required by federal law. Thomas and Justice Antonin Scalia are reported to have attended political strategy sessions hosted by industrialists Charles and David Koch; last fall Thomas and Scalia also appeared as guests of honor at an annual fundraising dinner hosted by the Federalist Society, a legal association. The Code tells judges not to take part in such fundraising.
Roberts’ critical vote last summer to uphold the Affordable Care Act, aka “Obamacare,” has been interpreted as at least in part a reflection of his concern that after a series of decisions in which it took positions favorable to Republicans the court was in danger of being viewed by Americans as becoming too political.
I have no idea if those commentaries are on the mark but I respectfully suggest that if the chief is really interested in asserting the court’s independence, he should embrace the Code of Conduct and get his colleagues to adopt it.
As I wrote on this subject early this year: “Our system of government is based on the idea of checks and balances — each branch of government acts as a check on the others. But when it comes to ethics enforcement, there is no one and nothing to check on the Supreme Court. We can do better. We must do better.”
This post also appeared in the Huffington Post