Even worse, not only did the justices allow their names to be used to add prestige to a transparently political event, they almost certainly hobnobbed with individuals and corporations with interests (if not actual cases) before the Court in a setting created specifically to magnify the influence of those attending. Although no one suggests justices cannot or should not attend meetings sponsored by ideologically friendly groups, the overtly political nature of the Koch gathering crossed the ethical line. The same would be true if a liberal justice was featured at a meeting of donors planning President Obama’s reelection campaign.
The problems — real or perceived — raised by Justices Scalia’s and Thomas’ actions are precisely why the Code of Conduct that governs federal judges mandates the avoidance of even the “appearance of impropriety.” The Code requires judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” and explicitly bans involvement in political and fundraising activity.
But Scalia and Thomas didn’t have to abide by those ethical restrictions. They could attend the Koch meeting with impunity because the mandatory Code of Conduct governing all other federal judges does not apply to the Supreme Court. Future controversies of this sort can be prevented by applying the same Code of Conduct that already governs the lower federal courts to the Supreme Court.
There is a growing awareness in Congress that without action the integrity of the Court is at risk. Recent statements by Representatives Anthony Weiner and Christopher Murphy have drawn attention to the lack of firm, consistent ethics rules for the justices. Hearings should be convened in both the Senate and House judiciary committees with the goal of reforming the rules and ending the ambiguous ethical environment in which Supreme Court justices now operate.
Another significant weakness in the Court’s procedures is the process of determining whether a justice must recuse himself or herself from a case due to a conflict of interest. The uncertainties arising from the current system can be seen in the dispute over whether Justice Thomas should recuse himself from the healthcare cases because of his wife’s income as an anti-reform lobbyist. As it stands now, the decision will rest exclusively with Thomas himself.
Regardless of what one believes about the merits of Justice Thomas’ situation or that of any other justice, there is a well-understood principle at law that no one should be the judge in his or her own case. In no other federal court does the decision on recusal fall solely to the person whose conflict is being challenged, without any opportunity for review or appeal. New standards should require written opinions and establish a process that provides for review of a justice’s decision.
The bottom line is that justices shouldn’t be permitted to live in a parallel ethical universe where they play by whatever rules they choose. It would be a great tragedy if the Court becomes perceived as just another outpost in our increasingly contentious political wars, which is where we are heading if reform is not implemented.
If imposing the Code of Conduct on the Supreme Court places more burdensome ethical constraints on the justices, then so be it. Sacrificing a few trips to partisan political gatherings is a small price to pay to save the honor of this Honorable Court.
Nan Aron is the president of the Alliance for Justice, an association of more than 100 environmental, civil rights, and consumer advocacy organizations.