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About Ethics Reform
Supreme Court Justices Should Not Be Above Ethical Rules
The perception of a judge's impartiality and independence is central to the public's faith in the judicial system. As the United States Supreme Court has stated, “justice requires the appearance of justice.” Protecting against the appearance of bias and partiality is particularly important for the Supreme Court, as its justices are subject to the most public scrutiny and their decisions have the widest impacts. Recent activities by Supreme Court justices call into question their impartiality and independence, and undermine public confidence in the judiciary. For example:
- Justices Scalia and Thomas attended a secretive political retreat hosted by Koch Industries, the second largest private corporation in the United States and funder of the successful Citizens United challenge to campaign finance laws.
- Justices Thomas and Alito have headlined fundraisers for right-wing groups such as the American Spectator magazine and the Heritage Foundation, lending the prestige of their judicial office to advance the groups’ objectives.
- Justice Thomas failed to disclose that his wife, “Ginni” Thomas, earned nearly $700,000 from the Heritage Foundation between 2003-2007, checking the box “None” for spousal income on his mandatory annual financial disclosure forms.
Click here to learn more about the Justices’ political and other ethically questionable conduct and how the Code of Conduct would apply to that behavior.
It is precisely because conduct like this undermines public faith in the independence of the judiciary that the Code of Conduct requires a judge to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” and explicitly bans political activity. Despite the important role that the actions of Supreme Court justices play in shaping public perceptions, shockingly, they are not required to abide by the federal Code of Conduct for United States Judges. Behaviors that would be prohibited for district or appeals court judges, such as engaging in political activity or speaking at a fundraising event, do not apply to justices on the highest court, where one would expect even more rigorous standards, and not, as is the case now, no formal standards at all.
Similarly, the recusal process is different for lower court judges and Supreme Court justices. While decisions of other federal judges not to recuse are subject to further review, in the Supreme Court the justice accused of bias has the final say. There have been recent calls for Justice Thomas to recuse himself from a case challenging the constitutionality of the health care law because his wife is engaged in lobbying against it. Regardless of whether this claim has merit, the ultimate judgment should not be made by the person under scrutiny. There is a well-understood principle at law that no one should be the judge in his or her own case. Yet, currently, there is no process at the Supreme Court to avoid that conflict.
It makes no sense for the most important court in the land to have the fewest formal ethical constraints. Alliance for Justice is calling for Congressional hearings to examine this issue and for legislation that would close the gap between the ethical standards applied to lower court judges and Supreme Court justices.
- The Code of Conduct that applies to all other federal judges should apply to Supreme Court justices.
- There should be a set of procedures to enforce the Code’s standards.
- Supreme Court justices should be required to issue a written opinion when they deny a motion to recuse.
- Either Congress or the Court itself should establish a procedure that allows for the review of a decision by a Supreme Court justice not to recuse him or herself from a case pending before the Court.
- Code of Conduct: Click here to read a memorandum detailing how the Code of Conduct would apply to recent political and fundraising activities of Supreme Court justices.
- Recusal: Click here to read a memorandum explaining the recusal standard and the ways in which the procedural mechanisms governing recusal differ for Supreme Court justices.