Federal judges’ conduct is governed by precise ethical codes that ensure their recusal from cases in which they may have financial, familial, or other relationships with relevant parties. Similar codes also apply to the vast majority of government employees – except a handful – in order to ensure the fair adjudication of justice. Perilously, the final arbiters of law in the United States, Supreme Court Justices, are exempted from these codes of conduct.
Chief Justice John Roberts has argued that because Article III of the Constitution outlines the role of the Supreme Court and Congress creates rules for federal judges, Congress should not have a role in creating ethical standards for Justices. Subsequently, he contends that it is sufficient for the nation’s highest justices to solely consult codes when making decisions – for instance, when to recuse themselves – but should not be bound by binding rules. Theory, however, does not always play out in practice; leaving ethical decisions up to individual justices on a case by case basis has permitted them to engage closely with parties related to a case and subsequently vote on such cases. Regardless of whether justices think they can still make unbiased decisions, the ability to adjudicate a case that one has an explicit connection to should not be permissible.
Just a few weeks ago, Justice Neil Gorsuch spoke at the Trump International Hotel before a room of high-level donors to the Fund for American Studies, a libertarian organization funded by notable conservatives such as the Koch brothers. If he were a federal judge, this would be verboten. Federal judges may not speak at events for political organizations, nor may they speak in support of politicians. This event, while not explicitly a fundraiser, solely invited the fund’s largest donors. It also implicitly profited the current President. Not only may he reap the profits from the event attendance that Gorsuch’s presence attracted, but Trump’s ownership of the Hotel may actually violate the Constitution’s Emoluments Clause. This clause in Article I states that no president can profit from foreign governments. Some argue that because Trump has rented out space to other nations, such as to a Chinese state-run bank, he violates. The grey areas evidently are that Gorsuch could hear a case on Trump’s hotel, and that he spoke on behalf of an organization that has explicit positions on many cases that will go before him.
Gorsuch is not the only justice that has engaged in unethical actions. In fact, his acts are not unprecedented. Justice Antonin Scalia went duck hunting with Vice President Cheney while a case about Cheney’s integrity on national energy policy was pending before the court. In addition to ruling with the majority to return the case to a lower court, Scalia also wrote an opinion dissuading the further investigation of Cheney’s actions during litigation. In the role of any federal judge, Scalia would have been forced to recuse himself from this case due to his close ties to Cheney. It is evident, the choice of whether or not to recuse oneself should not be left up to justices.
Scalia and Gorsuch are not anomalies and controversy does not strike along conservative or liberal lines. Scalia’s longtime colleague and companion Justice Ruth Bader Ginsburg told The New York Times in an interview that she “couldn’t imagine” Trump as President. Federal Judges, meanwhile, are forbidden from publicly opposing political candidates.
While these cases may only demonstrate the presence of ‘grey areas’, if any judges in this country should be subject to strict ethical rules, it should be the members of the nation’s highest court who have the final say in highly consequential decisions. In Caperton v. A.T. Massey Coal Co, the Supreme Court ruled in favor of judges’ recusing themselves when they have financial connections to one of the parties. The case was in regards to a Supreme Court Justice in West Virginia who ruled a case in favor of a company that had donated generously to his campaign. The court decided that economic ties to a party and “extreme facts” that cause a “probability of bias” prevent Due Process. The Court’s conclusion that “codes of conduct serve to maintain the integrity of the judiciary and the rule of law” is a finding they themselves should consider.
Members of Congress have repeatedly introduced legislation to enforce such codes. Most recently, Connecticut Democratic Senator Chris Murphy introduced the Supreme Court Ethics Act of 2017, which would cause the Supreme Court to devise an ethical code including the Code of Conduct for US Judges. There has been no action on this bill aside from its introduction, but it is imperative that it gains more traction and priority, especially now when many are questioning President Trump’s ethics and the Court is likely to hear cases on his proposed laws.
Some have speculated that this law ensuring a code of ethics would have no enforcement mechanism and ensuring compliance would be difficult because there is no oversight governing body for the court. Such speculators think it would render the bill ineffective. Justice Roberts wrote, “no compilation of ethical rules can guarantee integrity. Judges must exercise both constant vigilance and good judgment.” However, the presented examples demonstrate that justices’ perceptions of “good judgment” may not always be sound. Justices Roberts’ argument is like a teacher arguing that because rules against cheating cannot guarantee academic honesty, no rules are necessary and the school will just hope students do not cheat.
Given the weight that Supreme Court Justices’ decisions hold, it is essential that there is at least an attempt to guarantee integrity. Currently, nothing requires justices to disclose ownership of stock, paid travels, associations with parties to a case, or reasons for recusal. Sen. Murphy’s law may not be a panacea but it would certainly require more instances of recusal, furthering the division between justices and political candidates and organizations. It would likely urge better behavior, just as public oaths do. Regardless, attempting to increase the court’s integrity is worth a shot.
Although Chief Justice Roberts argues that the Supreme Court is unique in that its duties are outlined by the Constitution, these duties still required extrapolation in order for Congress to create the size of the Court, guidelines about the frequency of its meeting, and justices’ roles. This is a time when extrapolation is more than necessary to protect the integrity of the court’s decision. Those in power of making the final decisions of the nation’s most impactful legal cases should not be allowed to decide when and whether to follow ethical standards. Rather, they should be required to follow them always.