This is going to be a big year for the Supreme Court. Its decisions will be intensely scrutinized and will precipitate profound disagreements in American society, no matter which way they go. If there ever was a time for the Court to buttress public confidence in its propriety and objectivity, this is it.
With that in mind, Alliance for Justice recently called on Chief Justice John Roberts to use his annual Year-End Report on the Federal Judiciary to address the growing calls for reform of the Supreme Court's ethics rules. Last week, the Chief justice did just that, proving that public concern about some justices' behavior is starting to penetrate the marble firewall around the Court. That's a good thing.
Unfortunately, in spite of substantial evidence to the contrary, the message from Roberts is that he sees no ethics problem at the Court and that no reforms are needed or desirable. Besides, he inferred, no one can make rules for us anyway.
Over 140 law professors, newspaper editorial boards, and groups like Alliance for Justice, Common Cause, and others, have called for increased accountability and transparency from a Court that is steadily and alarmingly losing the trust of the public. The Chief Justice's casual dismissal of the ethics issues as the consequence of "misconceptions" will further erode the Court's credibility.
Calls for reform have been precipitated by a series of actions by some justices that call into question their judgment about ethical matters. For example, Justices Antonin Scalia and Clarence Thomas famously--or infamously--attended events at overtly political strategy conferences hosted by the Koch Brothers, and Justices Scalia, Thomas, and Samuel Alito have headlined and lent their name and prestige of their office to fundraising events for conservative organizations. These activities are expressly prohibited by the Code of Conduct that governs all federal jurists. The Code contains both general and specific ethical rules for all federal judges--except the nine members of the Supreme Court.
The Chief Justice maintains that in spite of their exemption, "All members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations." But the record shows that while some of them may consult it, they apparently don't feel compelled to actually follow it. That's' why reformers are calling on the Court to agree to be formally bound by its provisions.
Roberts' argument is that Supreme Court justices are "jurists of exceptional integrity and experience," and that the justices don't need formal written requirements like the Code of Conduct, because "at the end of the day, no compilation of ethical rules can guarantee integrity." But wouldn't that be true for the lower courts, too, or for any public official, for that matter? Why have written rules at all?
Roberts also says the Code is "phrased in general terms, [and] cannot answer all questions." That's true in some instances but not in others. The Code actually contains very specific prohibitions against "political activity" and direct participation in fundraising events, which are the provisions that have been so blatantly violated by Alito, Thomas, and Scalia. The Chief Justice neglects to explain how he reconciles his claim that the Court uses the Code for "guidance" with the well-documented behavior of his colleagues.
What the Chief Justice really means by his disparagement of the Code is that written rules are for thee, but not for me. Roberts' attitude is that he and the other eight justices are a singular and unique segment of human society capable of regulating their behavior completely on their own, based on standards that each justice gets to make up for themselves -- a smidgeon of Code here; a pinch of law review articles there; topped off with a chat in the hallway with their colleagues.
Roberts' claims of the wonderfulness of Supreme Court justices notwithstanding, we reject the idea that they are so special that they cannot be bound by written rules governing what they can and cannot do, just as every other judge in the country is.
Formally and voluntarily adopting the Code of Conduct would be a good way for the Court to begin the process of restoring public confidence in the integrity of its justices, and by extension, its decisions. This simple voluntary act would serve as an important signal to an increasingly skeptical public that the Court gets it.
When Chief Justice Roberts asserts that "the Court has had no reason to adopt the Code of Conduct as its definitive source of ethical guidance," he ignores recent behavior by his colleagues that clearly shows that's not the case. More importantly, he demonstrates a tragic lack of concern about public perceptions of his institution. People need to believe that they can get a fair, unbiased, impartial hearing when they come to the country's court of last resort. With trust in governmental institutions eroding across the board, this is not a propitious time in history to claim to be unaccountable.
Chief Justice Roberts was absolutely right to address the ethics controversies that are eroding confidence in his institution, but he missed an opportunity to say to the American people that he is willing to take the concrete steps necessary to restore that confidence. If the Court won't formally adopt the Code, and take it beyond its current status as mere "guidance," Congress will need to step in. Sadly, we are rapidly reaching the point where the Supreme Court may need to be saved from itself.
Alliance for Justice has substantial resources on Supreme Court ethics, as well as a short film on recent controversies and possible reforms, at www.aquestionofintegrity.org.