Albuquerque Journal

Justices follow their own ethical standards

- Joel Jacobsen

The For the People Act of 2021, also known as HR1, which passed the House of Representa­tives in early March and now awaits Senate action, has been touted as a landmark voting rights measure. It’s also a judicial ethics bill.

Section 7001 of the bill is titled “Supreme Court Ethics.” It consists of a single sentence, instructin­g the Judicial Conference of the United States to issue a code of conduct to govern the behavior of Supreme Court justices.

The Judicial Conference is a body of 26 federal judges presided over by the Chief Justice.

It might come as a surprise to learn that Supreme Court justices are constraine­d by no formal set of ethical rules. Federal judges serving at every other level of the judicial hierarchy are bound by the Code of Conduct for United States Judges, but the Code specifical­ly exempts the justices.

The Judicial Conference’s Regulation­s on Gifts use many roundabout words to say that federal judges should be satisfied with their handsome salaries and lavish perks and decline to accept any gift of value that might be misconstru­ed as the B-word. The Regulation­s exempt the justices, too.

In January 1991, members of the Supreme Court issued a resolution, signed by then-Chief Justice William Rehnquist, declaring their intention to comply with the Regulation­s on Gifts.

But that resolution was issued nine months before Justice Clarence Thomas, currently the longest-serving justice, took his seat. If current members of the court continue to abide by the Regulation­s (and how would we know if they don’t?), it’s as a matter of personal choice.

Five years ago, the New Mexico Supreme Court censured a well-regarded Santa Fe judge, the late Sarah Singleton, upon finding she had “created the appearance of impropriet­y by engaging in a phone conversati­on with plaintiff’s attorney that involved substantiv­e matters and was outside the presence of the other party or the other party’s attorney.”

Saying such “ex parte” communicat­ions create an appearance of impropriet­y is a little like saying shopliftin­g creates an appearance of larceny. New Mexico’s Code of Judicial Conduct, like its federal counterpar­t, flatly prohibits all such communicat­ions.

And yet, in October 2019, Supreme Court Justices Brett Kavanaugh and Samuel Alito not only met privately with representa­tives of the National Organizati­on for Marriage, at a time when the group was involved in a case pending before the Supreme Court, but actually posed for a group photo posted to social media.

The case involved LGBT rights. NOM, which opposes gay marriage, was participat­ing as amicus, or friend of the court, and not as a named party. That distinctio­n doesn’t change the ethical calculus. The purpose of the prohibitio­n on ex parte contacts is to protect the rights of the absent party, the one against whom NOM was litigating, and to maintain public confidence in judicial neutrality.

If Kavanaugh and Alito had been serving as lower federal court judges, they would have been subject to the same kind of censure meted out to Judge Singleton.

More recently, Alito gave what

veteran Supreme Court reporter Joan Biskupic termed an “ireful” speech to the Federalist Society, the influentia­l conservati­ve legal organizati­on. The intemperan­ce of the justice’s language shocked court watchers. Justices typically hide their personal feelings behind abstract legalese.

Alito left no doubt about his strong views on gun rights, abortion, gay rights and pandemic-related restrictio­ns on religious gatherings, all but announcing how he would rule in future cases.

Harvard Law Professor Noah Feldman, writing in the New York Review of Books, described Alito’s “rousing, ideologica­l” speech as his “apparent bid to compete with (Justice Neil) Gorsuch for leadership of the conservati­ve legal movement.”

I think Alito’s purpose was more straightfo­rward. I think he was encouragin­g Federalist Society members to bring cases raising those issues to the Supreme Court because, after Amy Coney Barrett’s confirmati­on, they have an excellent chance of winning.

The Code of Conduct for United States Judges prohibits public comment on matters likely to come before the court. When Supreme Court nominees of either party refuse to answer questions during their confirmati­on hearings, it’s in reference to that ethical canon. Alito flouted it.

Kavanaugh and Alito did things that would be unethical if done by lesser judges. And yet we can be quite sure that neither man questions his own ethics.

Both are former circuit court judges. Both know the ethical rules. But they also know their current court’s unique powers and responsibi­lities. They’re telling us they don’t believe that Supreme Court justices have an ethical duty to maintain the appearance of neutrality.

If an ethical code is enacted for the Supreme Court, whose ethics will it embody?

 ??  ?? Justice Samuel Alito
Justice Samuel Alito
 ??  ?? Justice Brett Kavanaugh
Justice Brett Kavanaugh
 ??  ??

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