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.

Justice Samuel Alito Jr.
Justice Samuel Alito Jr.

Judicial ethics rules are back in style this fall, and the justices seem to be wearing them a little shorter this year.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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.

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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?

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