High court must act to save itself
Another week has brought another story of a Supreme Court justice accepting expensive favors from someone who stands to benefit from goodwill on the bench. The highest court in the land is in a crisis of its own making — so it should save itself, or Congress should force it to. There are, of course, differences between Justice Samuel A. Alito Jr.’s luxury Alaskan fishing excursion on the dime of hedge-fund mogul Paul Singer and another Federalist Society donor; Justice Clarence Thomas’s superyacht cruises and lopsided real estate transactions with Texas billionaire and conservative campaign contributor Harlan Crow; Justice Neil M. Gorsuch’s land sale to one of the nation’s biggest law firms; and Chief Justice John G. Roberts Jr.’s wife’s headhunting fees from several top legal shops.
There are also differences between all these recently reported examples and the failure of justices including Sonia Sotomayor to recuse from cases involving book publishers from whom they’ve taken millions of dollars in book proceeds.
Reckoning with these distinctions has become an unending exercise. What matters more than the particulars is a problem that threatens the court’s foundations: Justices’ standards for their own behavior don’t align with what the public should expect of nine of the most powerful people in the country. At a time when trust in the institution is already depleted, this is perilous.
Existing federal law imposes some disclosure and recusal rules. But the justices aren’t held to the Judicial Conference’s code of conduct that applies to lower-court judges. Chief Justice Roberts has explained that the Supreme Court shouldn’t be held to precisely the same standards as the lower courts because of its “unique institutional setting” - and he’s right. There are thousands of judges and only nine justices. Those thousands of judges don’t have the constitutional last word on matters of vast national significance. The nine justices do.
Yet, this isn’t reason for the justices to point to the Judicial Conference’s strictures when convenient and ignore them when they are not. Rather, they should articulate separate rules for themselves that are explicit, specific and tailored to the nation’s highest court. The court should conduct a searching analysis of what impropriety and the appearance of impropriety look like from people in their particular position. Consider recusal: The justices are correct to remove themselves from deciding a case only under a narrow set of circumstances, such as when they’ve previously participated in a case before being placed on the court or when they have significant financial or personal interests in a proceeding. That’s because when a justice bows out, no one can simply step in as a replacement — and the absence of a single member can easily determine a case’s result, with no opportunity for a do-over.
The court should explain when it believes recusal is merited and why. And when a justice does choose to recuse in a specific case, the public should get a brief explanation, too. The nine justices recently signed a statement indicating they “may provide” exactly this information - but it’s optional, and not everyone has adopted the change.
Treating recusal as a last resort, however, makes other rules matter even more. Justices should set stringent standards on what sorts of gifts justices should take and activities they should engage in to avoid raising public suspicions. The court should also hold itself to the strictest standards of disclosure, so that anything approaching a conflict of interest is out in the open. If a justice decides to accept that seat on a private plane, at least the public will know about it — and the justice will know that the public knows. The Supreme Court ought to impose this clear, comprehensive code of conduct upon itself. If it doesn’t, Congress should mandate that it does. Lawmakers can mitigate separation of powers concerns by declining to prescribe the tenets justices must abide by — instead merely requiring that some tenets exist.
These same separations of powers issues make it hard, if not impossible, to police justices’ compliance with whatever code emerges. One idea would have the court create a review process to compare what justices do to what they’ve said they would do. A panel of past federal judges is one option. Better would be a committee of past Supreme Court justices, which would only be realistic if justices face term limits, as we believe they should. Unfortunately, this sensible idea has so far has proved too much to ask. What shouldn’t be too much to ask, however, is that the people who tell the country what rules the government and its citizens are bound to follow set some rules for themselves.