Supreme Court condones 'pay to play' politics as government as usual
© Getty Images

In yet another example of absentee ethics within Supreme Court politics, several Justices last week essentially condoned pay-to-play politics, giving the OK to rich donors buying time, resources, and special treatment from government officials. 

This most recent instance is an appeal of a lower court’s conviction of Gov. Bob McDonnell and his wife on multiple counts of extortion and honest-services fraud -- the couple accepted $140,000 in gifts and loans from dietary supplement-maker Star Scientific in exchange for product promotion (including handing out samples to staffers) and government-granted research on the supplement’s efficacy.

ADVERTISEMENT

The trial court had no problem convicting the governor under the Hobbs Act, which criminalizes government officials who receive payments or bribes in exchange for official acts. The Federal Appellate Court upheld the conviction but several Supreme Court Justices scoffed at the implication that this was anything but politics as usual.

Justice Stephen Breyer noted that the governor’s behavior, which included accepting a Rolex and a $20,000 shopping spree, is so “common” that to uphold the conviction would give the Justice Department too much power to police the behavior of government officials. Chief Justice John Roberts went so far as to say that upholding the case would “cripple the ability of elected officials to fulfill their role in our representative democracy.” 

If only it were more shocking to see the Supreme Court interpret bribes as a fundamental part of a representative democracy.  But we must remember that this is the same team of corporate cheerleaders who brought us Citizen’s United in 2010, which found that “ingratiation and access” of government officials was not a form of corruption. This is the same Court that blithely overlooked the many luxury excursions taken by the late Justice Antonin Scalia’s, bought and paid for by a businessman who had recently won a favorable ruling from the Court.

This is the same Court that -- despite trying the nation’s most influential cases -- has made itself uniquely exempt from even the most basic code of conduct. While every other federal judge is held accountable to the Code of Conduct for United States Judges, the Supreme Court Justices are under no obligation to adhere to any ethical code, nor are they required to explain or justify any potential conflicts of interest they have when trying cases.

Take Justice Breyer, who finds directing government research grants to prop up the business of a friend who gave him expensive presents, as Gov. McDonnell did, justifiably “common”. When Breyer was a cub judge on the First Circuit, he avowed that he would automatically recuse himself from any future case challenging the legality of sentencing guidelines he helped write. When push came to shove, however, he failed to recuse himself when just such a case came before the Supreme Court in 2005 when he was a Justice of the Court.

Failure to recuse in cases of clear conflict of interest have been commonplace in the Supreme Court for decades, as have the kind of all-expenses-paid vacations bankrolled by business interests that Scalia (and Gov. McDonnell) enjoyed. These apparent of conflicts of interest might raise eyebrows and even legal challenges, but at the end of the day the Justices are in charge of creating their own ethical checks.

So it’s unfortunately predictable that the current Supreme Court crew would sympathize with government officials just trying to “enjoy the perks” of their station, principles of good conduct and good governance be damned.

Regardless of where the Court lands on Gov. McDonnell’s case -- though it seems overwhelmingly likely to overturn the conviction -- the message sent by these early statements is a clear one: According to the Supreme Court, having your back scratched by corporate interests is a welcome part of the political process. And thanks to the Court’s lack of accountability, there’s virtually no way for anyone to challenge that view. 

Unless we go the source and implement measures of accountability in the Supreme Court. Advocates in the legal and government fields have been calling for this reform for decades, and twice congressional representatives have tried to pass The Supreme Court Ethics Act. Most recently, I filed an administrative petition to Chief Justice Roberts in March, calling on the Supreme Court to adopt the Code of Conduct for U.S. Judges, as well as create a committee to review and act on complaints to conflicts of interest, and commit to disclosing recusals and refusals to recuse publicly.

With a public approval of the Supreme Court at historic low of 43%, I’m clearly not the only one who feels the Supremes cannot be trusted to police themselves. It’s time we see some order -- and accountability -- in the court.


Harry Snyder is a consumer advocate and lecturer at the University of California, Berkeley, School of Public Health. He is the former director for the West Coast regional office of Consumers Union and former member of the California Commission on Corporate Governance.