Supreme Court justices live in a no-man's-land between public and private, political and legal. So it's always great fun when they attempt to explain why they don't need to abide by the rules of any of those worlds. This week, at a hearing to present the court's annual budget to a House Appropriations subcommittee, Justices Anthony Kennedy and Stephen Breyer were bound to make headlines if only because they appeared in suits instead of black robes. Yet further headlines were manufactured when Breyer tried to explain his newfound fondness for social media in technological terms reminiscent of the court's suave handling of last term's pager case and this term's argument over violent video games. Asked if he tweets, Breyer replied, adorably:
I had to have a tweeting thing because I was very interested in the Iranian revolution, remember when they just had this uprising a little over a year ago. … I sat there fascinated because you could look through the tweeting and see what was going on. The only way you could do that was go through the tweet or the tweeter.
He went on to say, however, that he allows himself no Twitter followers. "It's not a good idea on balance," he said. "Judges wear black robes so that they will resist the temptation to publicize themselves, because we really speak for the law and that is to be anonymous."
Leave aside the profound philosophical question of what it means to tweet without any followers. Breyer's comment reveals a lot about another subject about which he and his colleague were questioned vigorously yesterday: judicial ethics rules. Those rules that bind all other federal judges? They're awesome—but Supreme Court justices should have nothing to do with them. Sort of like Twitter.
To be fair, what Breyer and Kennedy said was that the justices do abide by the federal judiciary's ethical code. They just do so voluntarily. The justices each make decisions about their own recusals because, well, it's personal. But the fact that it's so personal is precisely the reason the justices should not. The mentality that legal ethics are for other judges is part of what is leading to the declining public regard for the judiciary.
Consider, for instance, the specter of a federal judge giving a speech defending the extracurricular activities of Justice Clarence Thomas and Ginni Thomas, while at the same time berating former Justice Sandra Day O'Connor for hers. Or consider the spectacle of two candidates for the Wisconsin Supreme Court, Justice David Prosser and challenger JoAnne Kloppenburg, portraying each other as corrupt ideologues. As the New York Times put it: "Justice Prosser was portrayed as a puppet of Governor Walker, Ms. Kloppenburg as a stooge of the unions. Those images will dog their careers. The heavy spending predates this year's heated battle, and the once collegial court has become increasingly fractured along political lines."
Because we are a romantic people who want to believe in the Tooth Fairy and the Easter Bunny, we also believe that something magical happens to justices and judges when they don the black robes. In exchange for that public trust-slash-delusion, judges are expected to do a few simple things: Avoid partisanship and the appearance of partisanship; avoid the appearance of having a stake—financial or otherwise—in the outcome of a case; disclose your activities and financial information; and recuse yourself when those appearances have been compromised.
Kennedy had a lot to say about appearances and bias in his majority opinion in the 2009 case of Caperton v. Massey, which involved the West Virginia Supreme Court judge who felt perfectly capable of giving a fair hearing to a man who had donated just under $2.5 million to get the judge elected to the court. The justice in question, Kennedy wrote, "conducted a probing search into his actual motives and inclinations; and he found none to be improper. We do not question his subjective findings of impartiality and propriety." But for Kennedy that wasn't enough: "The difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules. Otherwise there may be no adequate protection against a judge who simply misreads or misapprehends the real motives at work in deciding the case."
In other words, the same Justice Kennedy who worries about a judge's ability to honestly scrutinize his own biases, announced yesterday that Supreme Court justices should be left to scrutinize their own biases. The same justice who called for "objective rules" governing judicial recusal took pains to explain why these rules are neither binding nor enforceable against the justices of the Supreme Court.
I don't have a great solution for justices seeking to live a rollicking public political life while also preserving the public trust in the judiciary. But if Caperton, the judicial canons, and the potshots being taken by and at judges suggest anything at all, it's this: Individual judges, faced with questions of compromising judicial conduct, are in the worst possible position to judge themselves, and yet ever more willing to pass judgment on others.