Sunday, June 25, 2023

HOW AND WHY: AN ETHICS CODE FOR THE HIGH COURT

 


Top: Samuel Alito (center) as a guest of Paul Singer (right)  at an Alaska fishing lodge
Center: Leonard Leo, center on the 2008 trip with Justice Alito and Singer


The latest Pro Publica Report (this one re Justice Samuel Alito)  reinforces the picture painted recently of Justice Clarence Thomas as beneficiary of  billionaire sugar-daddy Harlan Crow.   It appears that Federalist Society leaders like the  Catholic conservative lawyer Leonard Leo,  ideological soulmates, and  Candyman benefactors who  lavish favors on the Supreme Court Historical Society, on vacationing judges, and bestow honorifics and campaign contributions have as great a say in how abortion, gun, and environmental matters are adjudicated as do the commands of statutes and properly adopted  rules and regulations.  Maybe more because Leo is often to whom  conservative judges and justices owe their jobs. And their special fishing trips, hunting lodges, and other such favors.

Alone among nations the national courts of the United States are staffed by life-tenured judges.  The only constitutional process for removal is impeachment – a process designed to be an unscalable wall. The Court long ago claimed to be the last word on Constitutional interpretation.  See McCullough v. Maryland telling the state it could not tax the Second Bank of the United States. But it has long arrogated power far beyond those initial confines.   In Prigg v. Pennsylvania (1842) Justice Joseph Story of Massachusetts declared that protection of property in human beings was  a make or break part of the Constitutional compromise on which no state could impinge.  The Supreme Court in Prigg protected the south from anti-slavery initiatives such as  Pennsylvania’s  law criminalizing re-capture of the enslaved.  A result of that was the catastrophe of the war to save chattel slavery, history’s then bloodiest war – the wounds of which have not yet been bound up, despite President Lincoln’s hope expressed in his 1965 Second Inaugural Address.

Georgetown's Josh Chafetz describes Nixon/Trump Judicial Aggrandizement. Now the Court refuses even to account to Congress for its members ethical lapses.  Every Justice, including the most junior, signed such a statement which was appended to the Chief Justice’s letter to Senator Dick Durbin in which he refused to appear before the Senate to discuss problems of ethics and the high court.  Stanford Law Mark Lemley has labeled it an Imperial Court.  Of course that is the sort of attack on the Court made by participants in the massive resistance – in the south, and elsewhere (viz. Boston i/a 1972) to the Supreme Court’s decision in Brown v. Board of Education voiding legally sanctioned or mandated segregated public school education..  Even today one cannot get conservative judicial candidates to firmly commit to embrace of  the 1954  decision of the Supreme Court.

The then 7th Circuit Court of Appeals judge Amy Coney Barrett at her Supreme Court confirmation hearings could manage only this:

“In my writing I was using a framework that’s been articulated by other scholars, and in that context, ‘super precedent’ means precedent that is so well established that it would be unthinkable that it would ever be overruled”.

But Roe v. Wade did not constitute such a “super-precedent”, even though for half a century women had relied on it to make the painful decision to terminate a pregnancy.  Rather she embraced the opinion of Samuel Alito in Dobbs b Jackson Women’s Health in which the majority embraced the opinion of Samuel Alito that Roe was wrong the day it was decided.

Today the Supreme Court has revoked its 50 year old precedent recognizing nationwide a right to terminate a pregnancy – leaving the issue to state by state political struggle.  And the Court has declared that the voters of 1789 spoke and recognized a personal right to bear arms that is unalterable by the States.

An unelected court that asserts such sovereign powers scarcely merits Alexander Hamilton’s Federalist 78 endorsement of the judiciary as the “least dangerous” branch.

The boldness of the recent Dobbs and New York State Rifle & Pistol rulings highlights the concerns about the Court and its composition.  Much attention has focused on Associate Justice Clarence Thomas whose “dear friend” Harlan Crow bought Thomas’s mother’s house, fixed it up, and let her live there rent-free, among other favors.  The Justice’s friend also lavished on Thomas and his wife private air fare and stays at comfortable resorts. Others express concern because Justice Neil Gorsuch sold a vacation property to the head of the major law firm Greenberg Traurig which often has business before the Court.

Since the Supreme Court has spurned calls to adopt a Code of Ethics.  Further the United States judiciary’s disciplinary mechanism 28 USC 351-364 is unsuited to the determination of most concerns about ethical conduct. It is designed only for instances of allegations  that “judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such judge is unable to discharge all the duties of office by reason of mental or physical disability”. 

The judicial disciplinary rules – a product of a 1995 report led by Justice Stephen Breyer - created case by case reviews of judicial conduct dependent on the non-appealable decision as to probable cause by the Chief Judge of a

District.

Nor does the process – flawed though it is -  reach the most important judges of all – those of the United States Supreme Court whose decisions on matters of Constitutional interpretation are unreviewable and unalterable save by change in membership of the court or amendment of a Constitution designed to protect the most cherished of state prerogatives such as the right to property in human beings.

The gap between judges removable at will and those embedded for life terms can certainly be filled by the Congress.  28 USC 455 applies to judges and justices but its broad terms contain no mechanism for application.  The basic standard in §455(a) is that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” As the Justices recently unanimously declared “Individual Justices, rather than the Court, decide recusal issues.” In no other case is any officer an unreviewable judge in her own cause.  Congress can change that.  The composition of the Court is its jurisdiction.  We could have a Supreme Court of one or of dozens.  The members’ qualifications, composition, and procedures are legislative choices. The Code of Judicial Conduct is within the power of the Congress.

Senator Sheldon Whitehouse has introduced S. 359 The Supreme Court Ethics, Recusal, and Transparency Act of 2023.  It would require the Supreme Court to within 180 days introduce by notice and comment a code of ethics for its members.  It would create a “judicial investigation panel” of chief judges randomly selected.

  Senators Angus King and Lisa Murkowski have offered the Supreme Court Code of Conduct Act.

  • The Murkowski/King measure would require the Supreme Court to implement a code of conduct within one year, produce an annual report, give the Supreme Court authority to initiate investigations, as needed, to determine if any Supreme Court Justices or staff may have engaged in conduct that is prejudicial to the administration of justice or that violates other federal laws or codes of conduct.

Neither of these legislative proposals adequately addresses the problem of who will decide and with what practical effect.  But they are a start. The Court can itself propose to Congress a permanent office to investigate and to advise the Courts.  It could be governed by retired judges and Justices of the United States.  Even if its decisions as to the Supreme Court’s members were advisory such a prestigious body’s judgments would carry weight with both public and courts.

 -          George Conk

       June 25, 2023

S359 Supreme Court Ethics,Recusal and Transparency Act of 2023  - Sen. Sheldon Whitehouse

Supreme Court Code of Conduct Act - King and Murkowski

Judicial Conduct and Disability - U.S. Courts

 In Bi-partisan Bill Senators Urge Justices to Adopt and Ethics Code

 

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