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"Breaking The Code: Why The Code Of Conduct For United States Judges Should Apply To The Nation's Highest Court" by Benjamin Pomerance

Breaking The Code: Why The Code Of Conduct For United States Judges Should Apply To The Nation's Highest Court

by Benjamin Pomerance

In June 2009, the United States Supreme Court turned a scornful gaze upon practices that they deemed to constitute corrupt judging. In a highly-publicized 5-4 decision, the Court struck down the holding of a West Virginia judge who refused to disqualify himself from a case involving a party who had contributed approximately $3 million to that judge's re-election campaign. See Caperton v. A.T. Massey Coal Co., 129 S.Ct. 2252, 2267 (2009). Despite the judge's repeated protestations that he was not influenced in any way by his past dealings with this prominent campaign donor, the Court insisted that the judge had violated fundamental principles of judicial ethics by presiding over this matter. See id.

The Court held that even if the West Virginia judge's impartiality had not actually been poisoned by his past relations with this particular party, the substantial likelihood of such bias should have been enough for the judge to recognize that recusal from the case was proper. See id. In cases where there is "a serious risk of actual bias" that is based on "objective and reasonable" public perceptions, according to the Court, a judge should disqualify himself from the case to safeguard the public trust in the court system -- even if no prejudice actually exists in the judge's mind. See id. at 2263. "The citizen's respect for judgments depends in turn upon the issuing court's absolute probity," Justice Anthony Kennedy wrote in the majority's opinion. "Judicial integrity is, in consequence, a state interest of the highest order." Id. at 2266-67 (quoting Republican Party of Minn. v. White, 536 U.S. 765, 793 (2002)).

In light of such vehement and worthy advocacy for strict adherence to principles of judicial impartiality, the results under the following circumstances would appear to be obvious. Situation One: U.S. Supreme Court Justice Clarence Thomas's wife, Virginia, has been extremely active in opposing the recently-passed health care reform laws promoted by President Obama. Specifically, Virginia Thomas has served as co-founder, president, and CEO of Liberty Central, a political activism group that has been extremely outspoken against this law. See Nina Totenberg, Bill Puts Ethics Spotlight On Supreme Court Justices, NPR, Aug. 17, 2011, available at http://www.npr.org/2011/08/17/139646573/bill-puts-ethics-spotlight-on-supreme-court-justices.html/. Situation Two: Justice Elena Kagan formerly served as the Solicitor General in President Obama's administration. In this high-level position, she took part in discussions with the President and his Cabinet members regarding the crafting of the health care policy that is now commonly referred to as "Obamacare." See Klayman Files Amicus Before Supreme Court Demanding Kagan Disqualification in Obamacare Case, STANDARD NEWSWIRE, http://www.standardnewswire.com/news/840356891.html.

In both situations, the proper course of action that should be taken in March, when the Supreme Court hears Florida v. Dep't of Health and Human Services -- a case challenging the constitutionality of the federal health care reform laws -- appears to be obvious: Both Justice Thomas and Justice Kagan should recuse themselves from hearing the case. Given the Supreme Court's strong expressed commitment in Caperton to preventing even the appearance of bias in judging, no other outcome seems reasonable.

Yet this is not what will happen. When the curtain goes up in March on one of the most highly-controversial cases in recent memory, all of the nine justices are expected to be present and participating. In the face of a widespread public outcry, Justice Thomas and Justice Kagan have refused to disqualify themselves from this case. See Editorial, Supreme Court Ethics, L.A. TIMES, May 25, 2011. Furthermore, Chief Justice John Roberts has pledged his support of this decision by his colleagues, stating in his 2011 Year-End Report on the Federal Judiciary that he has complete faith in the ability of his Supreme Court brethren to uphold the ethical standards of the Court. See Jessica M. Karmasek, U.S. Supreme Court Chief Justice Addresses Recusal Issue, LEGAL NEWSLINE, Jan. 6, 2012, http://www.legalnewsline.com/news/234812-u.s.-sc-chief-justice-addresses-recusal-issue.

As a consequence, a vitally important case will open next month under a cloud of popular suspicion toward two members of the nation's highest court. And as a result, whatever decision is reached by the Court on this constitutional question will be tainted by legitimate questions of why these two judges did not withdraw from making this decision despite such obvious conflicts of interest.

Unfortunately, this scenario is not new. Similar questions arose when Justice Antonin Scalia refused to recuse himself from a case in which then-Vice-President Dick Cheney was a party after Justice Scalia had gone duck hunting with Vice-President Cheney shortly before the Court heard oral arguments in the case. See Scalia Rejects Recusal Request in Cheney Case, PBS NEWSHOUR, Mar. 18, 2004, available at http://www.pbs.org/newshour/updates/law/jan-june04/scalia_03-18-04.html. Ethical issues of a different variety emerged from Justice Samuel Alito's work as a benefactor for highly-conservative political fundraising events, including appearing as the keynote speaker at a gala given by The American Spectator, a famously right-wing magazine, and helping to raise at least $70,000 for the conservative Intercollegiate Studies Institute -- appearances that Justice Alito said were "not important" to his ability to deliver unbiased rulings from the bench. See Jeff Shesol, Should Justices Keep Opinions to Themselves, N.Y TIMES, Jun. 28, 2011, http://www.nytimes.com/2011/06/29/opinion/29shesol.html?pagewanted=all.

Justice Thomas recently fought off questions regarding his acceptance of extremely costly gifts from Harlan Crow, a Texas billionaire who is known as a substantial contributor to conservative causes, refusing to comment on whether these gifts could affect his judgment in cases regarding matters that Mr. Crow supports. See Mike McIntyre, Friendship of Justice and Magnate Put Focus On Ethics, N.Y. TIMES, Jun. 18, 2011, available at http://www.nytimes.com/2011/06/19/us/politics/19thomas.html?pagewanted=all. Likewise, Justice Scalia and Justice Thomas have repeatedly refused to talk about the possible influence on their decision-making by the noted conservative Koch brothers, who run an annual conservative think tank in Florida in which both justices have allegedly taken part. See Shesol, Should Justices Keep Opinions to Themselves?. On the other side of the political aisle, Justice Stephen Breyer has served as a member of the advisory board for a liberal retreat called "Renaissance Weekend," an event that is known to be a favorite of Bill and Hillary Clinton. See Renaissance Weekend Advisory Board, http://www.renaissanceweekend.org/site/participants/anniversaryadvisors.htm.

Together, all of this adds up to a very undesirable situation: a climate of general mistrust in the impartiality of the highest court in the land. Yet the worst aspect of this entire mess is the Court's stubborn refusal to save itself from itself. All of the situations described above--refusing to withdraw from a case in which a reasonable perception of bias is readily apparent, fundraising for political causes, accepting significant gifts from third-parties, taking part in politically-minded events and activities--appear to be blatant violations of the Code of Conduct for United States Judges. See, e.g., Karmasek, U.S. Supreme Court Chief Justice Addresses Recusal Issue. Nevertheless, the justices of the Supreme Court fear no repercussions for their breaches of the Code, and can flaunt this lack of fear for a very simple reason: the Code of Conduct, by its express terms, applies to all federal judges except for the justices of the United States Supreme Court. See CODE OF CONDUCT FOR UNITED STATES JUDGES, Introduction.

The consequences of this situation are considerable. The Code of Conduct, which is created by the Judicial Conference of the United States (a body chaired by the Chief Justice of the Supreme Court and composed of the chief judge of each of the federal judicial circuits, along with a district court judge from each circuit), is designed to encourage public confidence in the judiciary. See CODE OF CONDUCT, Introduction. This is the same policy goal promoted by the Court in Caperton, where Justice Kennedy wrote so eloquently about the paramount importance of judicial integrity and properly noted that without the trust of the public, the system will fail. See129 S.Ct. at 2266-67. Yet the Supreme Court has stubbornly ignored its own advice for quite some time now, doggedly objecting to public criticism of the fact that the Code applies to all federal courts except the most influential one. Furthermore, given the staunch defense of the present system by Chief Justice Roberts in his Year-End Report, the Court's refusal to be bound by the Code of Conduct is unlikely to change anytime soon. See YEAR-END REPORT ON THE FEDERAL JUDICIARY, at 5.

However, the idea of the Court being held to the Code of Conduct's standards is not without significant support. In fact, the recent stream of apparent ethical violations by Supreme Court justices has greatly increased the demands for the Court to adopt and follow the Code. In February 2011, a group of more than 100 law professors across the nation sent a letter to the House and Senate Judiciary committees asking Congress to insist that the Supreme Court accept a designated ethical code of conduct. See R. Jeffrey Smith, Professors Ask Congress for an Ethics Code for Supreme Court, WASH. POST, Feb. 23, 2011, available at http://www.washingtonpost.com/wpdyn/content/article/2011/02/23/AR2011022304975.html?hpid=moreheadlines. Later that year, Representative Christopher S. Murphy (D-Conn.) introduced a bill that would make Supreme Court justices subject "to the same ethical rules that govern lower court judges" and would implement additional requirements making recusals from cases more transparent. See Totenberg, Bill Puts Ethics Spotlight on Supreme Court Justices. And on December 22, Nan Aron, president of the advocacy group Alliance for Justice, sent an open letter to Chief Justice Roberts requesting that he "address questions that have arisen about the ethical standards governing the Supreme Court." See Karmasek, U.S. Supreme Court Chief Justice Addresses Recusal Issue. The groundswell of support for reform in this area is likely what inspired the Chief Justice to devote the majority of his Year-End Report to this issue.

Yet the ultimate message from this report is unsatisfying, as are most attempts to explain why the Court should not adopt the Code of Conduct or a similar set of ethical standards. According to Chief Justice Roberts, the Code "does not adequately answer some of the ethical considerations unique to the Supreme Court." YEAR-END REPORT at 5. The Chief Justice further states that because the Code is "phrased in general terms, it cannot answer all questions." Id. He quotes from Cannon I of the Code, which states that the Code is designed "to provide guidance to judges," to show -- correctly -- that the Code provides no mandatory standards for any federal court. Id. at 4. Thus, he concludes, the Code is "a key source of guidance" for Supreme Court justices in making ethical determinations, along with other authorities that include the Supreme Court's Legal Office, the Judicial Conference's Committee on Codes of Conduct, and their fellow justices. Id. at 5.

All of this verbiage, however, means only that the Court acknowledges that the Code of Conduct exists, and might be worth paying attention to when ethical problems emerge. It means that the Court can look to the Code for guidance if it chooses to do so, but is not required to be subject to its terms. A Supreme Court justice could individually elect to ignore the Code entirely. In fact, that same justice could conceivably ignore all of the possible means of seeking ethical advice listed in the Year-End Report and still would almost certainly not be subject to any sort of discipline. In the end, the Chief Justice managed only to re-state the problem at the heart of this debate: the nine Supreme Court justices are not bound by any code of ethics, and enjoy complete autonomy in deciding what factors -- if any -- should be considered when determining whether their behavior is ethical. As New York University law professor Stephen Gillers noted, "the justices really are virtually untouchable." See Totenberg, Bill Puts Ethics Spotlight on Supreme Court Justices.

This puts each of the Supreme Court justices, as well as the Court as a whole, in a frighteningly powerful position. It is not enough for the justices to rely on the "constant vigilance and good judgment" of their own minds, as promoted by the Chief Justice. See YEAR-END REPORT, at 11. A fundamental common law principle of fair hearings states that "no person shall be a judge in his own cause," yet the system described by Chief Justice Roberts allows the justices to be their own final arbiters in all ethical matters.

And if the justices are indeed exercising "constant vigilance and good judgment," and if the Code is truly "a key source of guidance" in ethical decision-making for the justices, perhaps Chief Justice Roberts can explain the thought process employed by the justices in the scenarios described earlier in this article. All are worthy of criticism under the Code of Conduct. For instance, Cannon 4C states that "a judge shall not personally participate in fundraising activities, solicit funds for any organization, or use or permit the use of prestige of the judicial office for that purpose." Justice Alito seems to have violated this standard by his various appearances at fundraisers for politically-motivated organizations.

Looking further into the Code, Canon 5 states that "a judge must refrain from all political activity," a principle that appears to have been breached by Justices Thomas, Scalia, Alito, and Breyer in the above-described situations. And Canon 3C states that "a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned," something that Justice Scalia arguably failed to do in the duck-hunting debacle, and that Justices Thomas and Kagan will soon fail to do in the upcoming health-care reform case. It is difficult to believe that all of these situations fall into the category of matters where the Code "does not adequately answer" the ethical considerations at issue. Rather, it seems far more likely that in each of these situations, the justices simply ignored the apparent ethical problems because they have the unnecessary and unwarranted power to do so.

Chief Justice Roberts is correct in stating that the Code of Conduct is not binding on any court. See YEAR-END REPORT, at 5. However, although the Code is aspirational in nature, judicial disciplinary committees do rely upon it heavily in admonishing judges who commit unethical acts. See Totenberg, Bill Puts Ethics Spotlight on Supreme Court Justices. And while the Code is not the lone source of ethical guidance for any court, it does provide a useful set of basic principles of judicial conduct, a framework that will guide the vast majority of ethical issues. If the Court really does use the Code as "a key source of guidance," it is difficult to comprehend why this vaunted institution does not take the next logical step and voluntarily submit itself to being bound by these standards. At the very least, it would create a sense of stability that is sorely lacking in the Court's presently haphazard ethical system.

The most compelling argument against the Supreme Court's adoption of the Code is a constitutional one. Article III of the United States Constitution plainly states that there is to be only one "supreme court" in the nation. Therefore, some commentators argue, creating a mechanism by which some other body could pass judgment on the ethical nature of actions by Supreme Court justices would be patently unconstitutional. See, e.g., Russell Wheeler, Regulating Supreme Court Justices' Ethics--Cures Worse Than the Disease?, BROOKINGS INSTITUTION, Jan. 7, 2012, http://www.brookings.edu/opinions/. According to these observers, a system like the one proposed in Representative Murphy's bill, in which an independent panel of judges would make decisions about recusals and other ethical matters, would be an outright breach of the Court's constitutionally-granted powers. See id.

However, it is difficult to imagine that the Framers ever intended for any portion of the Constitution to provide an excuse for unethical behavior in the judicial branch. Therefore, to completely reject any reform in this area on these constitutional grounds seems to be a far too easy way out of a significant problem. If the system described in Representative Murphy's bill crosses a constitutional line, it appears that this concept could be tempered to conform with Article III rather than thrown out entirely.

For instance, instead of demanding that a panel of lower-court judges sit in judgment over Supreme Court ethical issues, the panel could instead produce "advisory opinions" that would be non-binding on the Court, but would be available to the public. Following the issuance of an advisory opinion, the Court would be required to produce a memorandum acknowledging the concerns raised by the panel, stating how the Court had resolved the issue, and describing the rationale used by the Court in coming to this conclusion of either following or ignoring the panel's advice. If the advisory opinion focused on an ethical issue pertaining to a specific justice, that justice would be required to author the responding memorandum; if the opinion dealt with a practice of the Court as a whole, then authorship of the memorandum would be assigned in conference, following the process used in assigning opinions for cases heard by the Court.

Such a system would accomplish the goal of providing transparency on Supreme Court ethical issues without violating the Court's Article III supremacy. It would make the justices publicly accountable for their actions while still leaving the ultimate decision of what to do in their hands. Notably, when Justice Scalia voluntarily issued a 21-page statement explaining his decision not to recuse himself from the case involving Vice-President Cheney, some of the controversy over the duck-hunting caper subsided. See Editorial, Judicial Ethics and the Supreme Court, N.Y. TIMES, Jan. 5, 2012. If the justices of the Court were required to follow a similar practice during legitimate ethical controversies, it would likely have a similarly positive effect. Of course, this system would not appease everyone, particularly the people in favor of a stronger system of oversight on Supreme Court activities. Yet it would provide a worthy and workable compromise between the current situation and the more extreme measures proposed by Representative Murphy.

What should not happen, however, is a continued adherence to the status quo. The nation's highest judicial body is experiencing a crisis of confidence among the American public, and lukewarm rationales like the explanation delivered in the Chief Justice's Year-End Report will not suffice. Reform is necessary, and the constitutional arguments raised by some commentators, while arguably worthy points, should be catalysts for compromise, not reasons to continue with the murky system that exists today.

With a spring term filled with extraordinarily controversial cases, the importance of public trust in the Supreme Court is at an all-time high. Questions about the impartiality of the Court will undermine the faith of the American people in these crucial upcoming decisions, a problem that the nation can ill afford. Yet in Caperton, the Court provided the answer to questions regarding the importance of a transparent and reliable system of safeguarding a court's adherence to established principles of judicial ethics. Now, the Court needs to look back at its decision in this case, and realize that the time has come to practice what it preaches.

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This page contains a single entry from the blog posted on February 17, 2012 8:47 PM.

The previous post in this blog was "You Do Not Have the Right to Remain Silent: The Fifth Amendment Right Against Compelled Self-Incrimination Inside the School Setting" by Elizabeth Lentini.

The next post in this blog is "From The Editor".

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