Last night was the occasion of the Federalist Society 2011 Annual Dinner, a black-tie fundraising event in Washington, D.C., that serves as the gathering of the conservative legal clans -- the powerhouse law firms, think tank staff, big funders, politicians, former attorneys general, academics, torture-memo writers, and conservative media.
Absolutely nothing wrong with that. No one denies any group the right to gather over beef tenderloin and sea bass to raise some cash, advance their cause, and give donors and big-shots a one-stop networking opportunity. It happens all the time, and every organization from every conceivable ideology does exactly the same thing.
But what made this occasion different and ethically problematic was the fact that this fundraising dinner honored Supreme Court Justices Clarence Thomas and Antonin Scalia for their decades of service, sold sponsorships and tickets using their names, and gave them a principal speaking role.
Some have accused us of trying to stifle the participation of Supreme Court justices at events sponsored by groups with ideological leanings. It's important to understand that nothing prevents a judge or justice from speaking to a plenary session of a group's convention or participating in panel discussions, for example. The line is drawn when raising money is the apparent purpose of the event, as was the case with this dinner, whose program lists various levels of "generous support," and thanks over 30 big law firms, plus corporations like Chevron, Pfizer, Verizon, Facebook, and Time Warner. (Et tu, Facebook?) In fact, at the end of the evening, during which Justice Thomas thanked the audience for coming to "remember and celebrate my tenure on the Court," Federalist Society President Eugene Meyer talked about the growth and achievements of his organization and asked all the donors to stand and be recognized.
The Justices' active involvement in this event plainly violates the principles outlined in Canon 4C of the Code of Conduct for United States Judges, which says judges "should not personally participate in fund-raising activities." The Code's commentaries state unequivocally that "the judge may not be a speaker, a guest of honor, or featured on the program of such an event." Last night, Scalia and Thomas were all three.
The idea behind the Code's ban on fundraising is a simple one: federal judges cannot be seen to lend personal support to any private enterprise or to favor one group over another. When judges let their name be used to garner funds to support the mission of an organization, they can be perceived as implicitly (or explicitly) supporting and endorsing that group.
Unfortunately, the fact that Justices Scalia and Thomas carelessly or willingly broke a major ethical precept is of little practical consequence since the Code does not formally apply to the Supreme Court.
There are only nine federal jurists who could get away with doing what Scalia and Thomas did, and although Supreme Court spokespeople have said that the justices accept the Code's principles as "guidance," apparently some either don't understand the rules or simply don't care to be guided that way. This is exactly why Alliance for Justice, members of Congress, and other groups have called for immediate reform of Supreme Court ethics rules, including the formal application of the Code of Conduct to the Court, either by voluntary action by the justices themselves or by congressional action.
The canons of the Code of Conduct are there to preserve public confidence in the fairness and integrity of the Court. By allowing themselves to be pulled into fundraising events like the Federalist Society dinner, which should have been out of bounds, the justices reinforce the idea that in spite of increased scrutiny about their behavior, they just don't seem to get it. The Code is clear. Federal jurists should not be used this way. And if the inviting organization doesn't understand that, the justices should.
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For more on the need for ethics reform, see Alliance for Justice's latest short film, "A Question of Integrity: Politics, Ethics, and the Supreme Court."