Judicial ethics rules are back in style this fall, and the justices seem to be wearing them a little shorter this year.
This week, Justice Clarence Thomas' wife, Ginni, reportedly surrendered her leadership position at Liberty Central, a group she founded only a year ago to coordinate Tea Party activists and their political efforts. According to the Washington Post, a spokeswoman for the group, citing Thomas' involvement as a "distraction," indicated that Thomas would step down. Such a move would ensure that lingering judicial ethics questions for her husband—in part surrounding the $550,000 the group has received from anonymous donors—would be dispelled before he has to contend with them from the bench.
But anonymous donors were the least of it. Legal ethics experts had begun to raise questions about whether the wife of a sitting justice should be quite so directly involved in fighting Obama policies; policies the court may someday rule on. Liberty Central's Web site has, for instance, described the "tyranny" of the Obama administration and featured (briefly) a memo, purportedly signed by Ginni Thomas, describing Obama's "unconstitutional" health care legislation—which triggered yet more ethical questions. To remedy that particular problem, Liberty Central removed some of the language from its Web site and indicated that Thomas' name had been added to a memo on health care reform without her knowledge. Still, given that the Tea Party group is likely to continue talking the Tea Party talk (the Web site describes the Paycheck Fairness Act as the "Job Killing, Trial Lawyers Bonanza Act"), it was probably better for Thomas to depart than have to justify the cable news rhetoric at every turn.
And Liberty Central may be the least of this ethics issue. It's not just the Thomas family that has been accused of crossing an invisible line into unseemly political partisanship in recent weeks. Earlier last month, reports surfaced that Thomas and his colleague Antonin Scalia had been taking part in supersecret events organized by the supersecret Koch brothers.
Now, nobody questions the propriety of sitting Supreme Court justices giving speeches or participating in debates at think tanks, law schools, or judicial conferences. The question raised by the Koch events was whether they should also be participating in off-the-books conclaves that—by the terms of the event invitation itself—were designed "to review strategies for combating the multitude of public policies that threaten to destroy America as we know it." Since nobody knows for sure what the justices did at the Koch event, it's unclear whether any ethical rules were violated. When Sam Stein of the Huffington Post asked several legal ethicists their opinion, they mostly responded that this sure was an interesting problem and someone should do some more digging.
Some of these ethics questions seem to turn mainly on who's ox is being gored. Former Justice Sandra Day O'Connor also found herself on the receiving end of ethical complaints this campaign season surrounding her advocacy against state judicial elections. Her involvement in an effort to persuade Nevadans to adopt a merit-selection system backfired when a robo-call she had recorded was inadvertently sent into Nevada households at 1 a.m. Immediately thereafter she was assailed by groups demanding that she cease and desist with this political advocacy or step down from the bench. (She still hears cases as a part-time appeals-court judge.) As Justice at Stake's Burt Brandenburg argued, justices are allowed to advocate about matters relating to the judiciary: "The federal canons of ethics explicitly permit and encourage involvement in activities concerning the law, the legal system, and the administration of justice. Ethics specialists like NYU law professor Steven Gillers note that the bar on political activity is focused on advocacy for candidates, not issues."
And then, last week, came reports that Justice Samuel Alito had been giving keynote addresses for swanky dinners for the American Spectator. Again bloggers, this time on the left, suggested that it was a blatant violation of the judicial ethics rules for a sitting justice to headline fundraisers for partisan political groups. As Lee Fang from Think Progress argued, "The Spectator is more than merely an ideological outlet. Spectator publisher Al Regnery helps lead a secretive group of conservatives called the 'Conservative Action Project,' formed after President Obama's election, to help lobby for conservative legislative priorities, elect Republicans ... and block President Obama's judicial appointments. The Spectator's gala last night, with ticket prices/sponsorship levels ranging from $250 to $25,000, featured prominent Republicans like RNC chairman Michael Steele [and] hedge fund billionaire Paul Singer." Rep. Michele Bachmann delivered the keynote.
Alito has said he will not attend State of the Union addresses anymore because they're too "political." So what did he think when Michele Bachmann got up at the Spectator dinner and proclaimed: "In a time when our nation is in trouble, broke, and weighed down by bloated and over-reaching government, less respected in the world and seemingly incapable of keeping the American Dream alive, our fellow citizens made it clear they've had enough of Chicago-style community organizing repackaged." Who can say?
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.