Justices need clearer rules about their partisan political activity.

The law, lawyers, and the court.
Nov. 18 2010 6:28 PM

Running With Gavels

Justices need to set clearer rules about partisan political activity.

(Continued from Page 1)

When is a political event too political? Who decides whether the Spectator is a conservative fundraising organization or a "nonpartisan media organization," as it claims? What's the difference between an event and a fundraiser? What's the difference between being a guest and a "guest of honor" at an event when you are a Supreme Court justice? Hey, can we make some space for a few more angels on the head of that pin?

And then, as if those questions aren't mushy enough, there's this: The justices are not clearly bound by any set of rules, anyhow. The ethical canons that regulate the conduct of the rest of the federal judiciary don't even apply to the members of the Supreme Court. As noted on the Constitutional Law Prof Blog last week, the Code of Conduct for United States Judges is somewhat clear about the types of extra-judicial activities other judges may be involved in (Canon 4) and what sorts of fundraising activities may be off limits. But Supreme Court justices look to those canons for "guidance" and are not bound by them.

Questions about when a justice is compromised, or appears to be compromised, are always left to the justices themselves (as are questions about when they should recuse themselves from hearing a case). A federal statute says only that justices shouldn't participate in any proceeding in which their "impartiality might reasonably be questioned." If anyone questions that impartiality, they can choose to publicly respond—as Justice Scalia did over duck-gate—or not. In other words, the people accused of being less than impartial get to determine both whether they have misbehaved and whether to tell us why.

It's not even left to the justices as a group to make these decisions—it's up to the justice who has been called out for showing bias. Asking the person accused of being unduly influenced by his attendance at the Koch brothers' luxury junkets whether he's biased is likely to elicit precisely the sort of responses my sons give when I ask who crayoned the walls in the hall. As Steven Lubet argues, asking a judge to determine whether he's compromised after you've accused him of being compromised is probably the worst way to determine whether he's actually compromised.

Advertisement

All this said, I am on the record saying that it's still in the best interest of judicial independence to allow the justices themselves to determine if they have crossed the line into the appearance of impropriety. The alternative is so much worse. But like Lubet, I think it's time the justices clarify, as a group, what's permissible and what isn't. If they are going to give speeches and attend conclaves, they should explain what kinds of speeches and what kinds of meetings are OK. Nobody is telling the justices what to say or who to spend time with. But it would help if they could offer some clue as to where they draw the line on such matters and why.

And then, I humbly suggest, they should stay as far from that line as possible. The guiding principle should be, When in doubt, don't. In the new Brennan biography by Seth Stern and Stephen Wermiel, the authors explain that Brennan was so horrified at the suggestion that his speeches and activities compromised him that he gave them up altogether for years, even the uncontroversial ones. Nobody is suggesting that kind of overcorrection is necessary, and the public only stands to gain when the justices give speeches and attend events. But for a bunch of people who are tasked with drawing fine lines, they seem to be struggling with drawing any lines at all when it comes to their own activities.

We treat justices as if they're special because we need to believe they are special. Brennan seems to have understood that the legitimacy of the entire judiciary rests on the perception that they answer to their critics as well as their supporters. Being a Supreme Court justice has always been more about managing public perceptions than reality. And sometimes that means dining alone at home with your family.

Like Slate on Facebook. Follow us on Twitter.

TODAY IN SLATE

Politics

The Democrats’ War at Home

How can the president’s party defend itself from the president’s foreign policy blunders?

Congress’ Public Shaming of the Secret Service Was Political Grandstanding at Its Best

Michigan’s Tradition of Football “Toughness” Needs to Go—Starting With Coach Hoke

A Plentiful, Renewable Resource That America Keeps Overlooking

Animal manure.

Windows 8 Was So Bad That Microsoft Will Skip Straight to Windows 10

Politics

Cringing. Ducking. Mumbling.

How GOP candidates react whenever someone brings up reproductive rights or gay marriage.

Building a Better Workplace

You Deserve a Pre-cation

The smartest job perk you’ve never heard of.

Hasbro Is Cracking Down on Scrabble Players Who Turn Its Official Word List Into Popular Apps

Florida State’s New President Is Underqualified and Mistrusted. He Just Might Save the University.

  News & Politics
Politics
Sept. 30 2014 9:33 PM Political Theater With a Purpose Darrell Issa’s public shaming of the head of the Secret Service was congressional grandstanding at its best.
  Business
Moneybox
Oct. 1 2014 8:34 AM Going Private To undertake a massively ambitious energy project, you don’t need the government anymore.
  Life
Gaming
Sept. 30 2014 7:35 PM Who Owns Scrabble’s Word List? Hasbro says the list of playable words belongs to the company. Players beg to differ.
  Double X
The XX Factor
Sept. 30 2014 12:34 PM Parents, Get Your Teenage Daughters the IUD
  Slate Plus
Behind the Scenes
Sept. 30 2014 3:21 PM Meet Jordan Weissmann Five questions with Slate’s senior business and economics correspondent.
  Arts
Brow Beat
Oct. 1 2014 8:46 AM The Vintage eBay Find I Wore to My Sentencing
  Technology
Future Tense
Sept. 30 2014 7:00 PM There’s Going to Be a Live-Action Tetris Movie for Some Reason
  Health & Science
Bad Astronomy
Oct. 1 2014 7:30 AM Say Hello to Our Quasi-Moon, 2014 OL339
  Sports
Sports Nut
Sept. 30 2014 5:54 PM Goodbye, Tough Guy It’s time for Michigan to fire its toughness-obsessed coach, Brady Hoke.