Judicial Ethics Rules – Only Nine Judges in US Are Exempt

And just guess who they are. Every judge in the United States, including all state judges under individual state ethics’ rules, and all federal judges under the Code of Conduct for United States Judges must follow specifically delineated rules of conduct, except for the Justices of the United States Supreme Court whose conduct is governed only by their personal beliefs as to what activities in which they may or may not engage.

The US Constitution gives Congress certain powers over the Supreme Court and inferior courts, and Congress has exercised those powers to pass these rules for all inferior federal courts, but not for the Supreme Court. Calls have been repeatedly made to right this striking omission, and just three years ago a group of 212 legal scholars sent Chief Justice John Roberts a letter urging him to adopt a code of conduct for U.S. judges, including those on the Supreme Court. Congress has tried in the past to promulgate such rules for the highest court, beginning with the first effort at a Supreme Court Ethics Act introduced in 1973.

The Case Against the Supreme Court by Erwin Chemerinsky

But now a new effort is underway, as a revised Supreme Court Ethics Act was introduced yesterday in the Senate by Senator Chris Murphy (D-Conn.) and in the House by U.S. Congresswoman Louise Slaughter (D-N.Y.). Cosponsors of the Supreme Court Ethics Act include Senators Richard Blumenthal (D-Conn.), Ed Markey (D-Mass.), Sheldon Whitehouse (D-R.I.), Dick Durbin (D-Ill.) and Chris Coons (D-Del.), plus 25 members of the House of Representatives.

The existing Code of Conduct for United States Judges includes stringent rules that have been flaunted time and time again by at least three sitting members of the Supreme Court.

Canon 2B of the Code of Conduct states in part as follows:

“A judge should avoid lending the prestige of judicial office to advance the private interests of the judge or others. For example, a judge should not use the judge’s judicial position or title to gain advantage in litigation involving a friend or a member of the judge’s family.”


Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted by Ian Millhiser
Yet, Justice Clarence Thomas has sat on cases and made key votes in cases in numerous such situations. Thomas' wife, Virginia, is and has been for many years, a paid lobbyist, and she has received direct income, salaries and other benefits in excess of $1.5 million for her efforts in lobbying against healthcare reform. She was for many years a paid employee and lobbyist for the tea bagger organization Liberty Central, and then she left to form her own consulting business, Liberty Consulting, where she continued such paid lobbying efforts, all aimed at first defeating and then repealing the Affordable Care Act and other healthcare reform efforts. Also, a complaint was made to the IRS by Common Cause, alleging
that Liberty Central violated federal rules against non-profits actively supporting political candidates in excess of specific limits. Virginia Thomas has also worked for other conservative organizations and media outlets including the Heritage Foundation and the Daily Caller, continuing her efforts in opposition to healthcare reform.

She is also a member of the coalition of conservative activists Groundswell, that has raised funds for and conducted media campaigns in support of several dozen conservative issues, including the proliferation of restrictive voter id laws. Yet, her husband refuses to recuse himself and votes to decide cases on the Affordable Care Act, the Voting Rights Act, and others where he clearly is providing an advantage to litigation “involving a friend or a [family] member”.

Canon 5A of the Code of Conduct states in part as follows:

“A) General Prohibitions. A judge should not:

(2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office; or
(3) solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate.”

Yet, Thomas, Justice Antonin Scalia, and Justice Samuel Alito have all repeatedly attended fundraisers for and made speeches for political organizations. For example, in 2010 the New York Times reported that Thomas attended a Koch Brothers event for republican donors where they focused on efforts to defeat regulations on climate change and greenhouse gas omissions.

Scalia has appeared at and has spoken at numerous conservative political events and fundraisers, both for

Uncertain Justice: The Roberts Court and the Constitution by Laurence Tribe and Joshua Matz
various specific issues and for republican candidates. A couple of examples include:

1. In August of 2012, he spoke a Friends of Abe event, for which his transportation, food and lodging were all reimbursed. Friends of Abe, dubbed “Hollywood’s Conservative Underground” by the Washington Times, is the largest, most powerful and most influential conservative activist group in Hollywood. The group regularly raises funds for republican candidates, including former California gubernatorial candidate Carly Fiorina.

2. Scalia has on several occasions attended and spoken at ultra-conservative Federalist Society functions, often in the company of one of his fellow conservative Supreme Court Justices, including Thomas in 2011 and Samuel Alito in 2014. What is particularly troubling is not just that these events are both tributes to conservative causes and fundraisers, but that they are attended by virtually every top right wing Washington lawyer, who at the time of any such even have cases then pending before the Supreme Court.

Speaking of Alito, in 2010 he headlined a fundraiser for the American Spectator, an online magazine still best know for creating phony stories of alleged corruption in Arkansas, written with the goal of the impeachment of President Bill Clinton.

While not binding on them, some Justices of the high court have pledged to follow those same rules applicable to other federal Judges. During a Congressional hearing held in 2011, Justices Anthony Kennedy and Stephen Breyer testified that they had agreed to follow them, but, alas, clearly others have not done so.

It is long past time for ALL Supreme Court Justices to be subject to the same ethical rules as are all other judges.

About theHoundDawg

For many years as a lawyer, I saw much of the good and bad of society, and did what I could to right many wrongs. The lack of understanding of what is good and bad, right and wrong, just and unjust, as evidenced by such events as the election of King W as president, (who as such far surpassed the evil of richard nixon but not quite that of ronald reagan) lead me in a new direction, to spend my time trying to understand what is happening to our society, to try as best I can to spread my insights to others, and along the way to maybe even eke out a living through the internet.
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