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.
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.
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