The idea of ethics rules for judges arises from the belief that Judges as impartial arbiters of the law should avoid actions which could lead to an appearance of a conflict of interest or bias. Most Judges function under a Code of Judicial Ethics of some sort, with the exception of the US Supreme Court.
The first rules governing the conduct of judges in the United States were the Canons of Judicial Ethics, which were written in 1924 by an ABA committee chaired by William Howard Taft, then chief justice of the U.S. Supreme Court. Prior to the promulgation of these canons, no cohesive framework existed to inform judges of the ethical obligations of their position. Judges were subject to removal, but only through the cumbersome, politicized procedures of congressional impeachment, address, or recall.
A judge's leadership as the commissioner of professional baseball helped provide the inspiration for the Canons of Judicial Ethics.
In 1919, eight members of the Chicago White Sox conspired to purposely lose the 1919 World Series in exchange for payments from bookmakers. To restore public faith in the professional baseball league, the owners of the teams, on November 12, 1920, asked prominent federal judge Kenesaw Mountain Landis to be the game's new commissioner. Landis accepted the position, which he subsequently filled while simultaneously serving as a U.S. district court judge in the Northern District of Illinois. Landis helped restore professional baseball's integrity, but his highly publicized role as the sport's commissioner damaged the integrity of the judiciary.
The ABA considered his simultaneous service as a federal court judge a conflict of interest, and it voted to censure Landis in 1921. Landis resigned from the bench on March 1, 1922. In 1924, in part as a response to the Landis affair, the ABA promulgated the Canons of Judicial Ethics to regulate the activity of judges.
The Current Model Code of Judicial Conduct was formulated by the American Bar Association (ABA) in 1972. The code itself does not have the force of law, but federal and state governments have adopted it and use violations of its rules as the basis for punitive action against judges.
The Supreme Court often becomes A significant player in times high partisan divisions in American politics and the ethics of individual justices become a focus of criticism.
Common Cause, for instance, discovered that Justice Clarence Thomas failed to report his wife's nearly $700,000 in income when she worked for the conservative Heritage Foundation. The failure was indeed a clear violation of the law, but it was also the kind of oversight that occurs routinely on disclosure forms, and Thomas quickly amended his filings for a 13-year period, saying he had misunderstood the law's requirements.
Ethics experts agree that while Virginia Thomas' political activities may be unseemly to some, there is nothing in the judicial Code of Conduct that would require her husband to recuse himself from cases involving the issues she has spoken so publicly about. Nor should Virginia Thomas' public opposition to matters such as the Obama health care law require Justice Thomas to recuse himself from future challenges to the law.
New York University law professor Stephen Gillers, author of a leading text on legal ethics, notes that federal law bars judges from participating in any matter in which they or their family have a financial interest, but ideological issues are another matter entirely.
"A spouse of a judge can have a full political life and take positions on political issues and legal issues, even ones that come before his or her spouse," Gillers says.
What did trouble legal experts about Virginia Thomas' Liberty Central role was that she was being paid by an organization funded by secret donors. Liberty Central was started with two large gifts totaling $550,000, and under the tax law governing nonprofits, the identity of neither those nor subsequent donors had to be disclosed.
"The crunch point comes if Mrs. Thomas' [tax-exempt nonprofit] gets substantial contributions from companies or trade associations that have interests in matters that are pending at the Supreme Court or headed for the Supreme Court," Gillers says.
In the end, Virginia Thomas stepped down from her position at Liberty Central to take another job that was political in nature but less visible.
There is every reason to believe that Justice Thomas' colleagues, his fellow justices or perhaps the chief justice quietly made clear that Virginia Thomas' activity could harm the Supreme Court's credibility as an institution. Professor Gillers says the first line of defense should be self-restraint.
There are indications that the justices also exerted pressure on Justice Antonin Scalia when he participated in a 2004 case challenging then-Vice President Dick Cheney's use of executive power.
Three weeks after the court agreed to hear the case, Scalia went on a long-planned duck hunting trip with Cheney. After a two-month drumbeat of criticism in the media, and a formal request from the Sierra Club that he recuse himself, Scalia finally issued a 21-page memorandum explaining that the trip was an annual event with his son-in-law, that he was one of 13 hunters on property owned by a friend in Louisiana, that he had never been alone with Cheney on the trip, and that "a rule requiring Supreme Court justices to recuse themselves from cases in which the official actions of friends were at issue would be utterly disabling."
Almost immediately, the sting went out of the duck-hunting controversy.
By the time he was through reading the memorandum, says the Brookings Institution's Russell Wheeler, he had concluded "there's not a problem here. But why did he wait so long? Why not just deal with these things upfront?"
Justice Samuel Alito has also been the subject of ethics scrutiny — most prominently for his repeated attendance, and on one occasion his role as keynote speaker, at fundraising dinners for The American Spectator magazine, published and supported by conservative political activists.
The judicial code of conduct bars judges from fundraising activities because, as Professor Gillers puts it, the judicial mantel carries a lot of prestige, and "it's very hard to say no to a judge."
Even attendance at overtly political conferences has provoked criticism. Justices Thomas and Scalia were criticized for their attendance at dinners sponsored by Charles and Elizabeth Koch during what are widely billed as conservative political strategy events put on each year by the conservative Koch brothers.
Scalia and Thomas, however, have said they were invited to speak by the conservative Federalist Society, a legal group. Scalia's speech was about international law, and Thomas' about his then recently published book. Thomas did say he attended one panel at the Koch brothers' conference, but that he could not remember which one. Scalia said he did not attend the Koch conference. Both Justices said their expenses were paid by the Federalist Society.
The conservative watchdog group Judicial Watch has also suggested that Obama Supreme Court appointee Elena Kagan should recuse herself from participating in any of the upcoming challenges to the Obama health care law. But the documents that the group sought and obtained under the Freedom of Information Act show Kagan — who was already under consideration for the court at the time — explicitly keeping herself out of the White House and Justice Department discussions about how to defend the law.
Whatever the merits of each of these examples, they illustrate how the court is being buffeted by interest groups over ethics questions.
These groups "perceive, with some justification, that the court's overall credibility is in play," says NYU's Gillers." They see that they can get mileage from that kind of publicity." Even though the efforts to force Kagan and Thomas to recuse will fail, he says, the purpose is "to undermine the credibility of the decision, whichever way it goes."
"Today, with information moving as fast as it does, it would be very difficult for any justice to hide any improprieties, and I think the court is therefore an extremely ethical place," he says.
But many ethics experts believe the court is asking for trouble by not being formally bound by the same judicial code of conduct that applies to lower court federal judges.
"If the public begins to believe that there is a political agenda" rather than a legal one at the court, says NYU's Gillers, "the court's credibility — the willingness of the public to accept its decisions — will be harmed."
The Constitution says only that Supreme Court justices shall hold their offices "during good behavior."
As long as there has been a Supreme Court, each justice has decided for himself or herself when to recuse, when to step aside and when to not participate in a case. Yes, there are rules of the road, but at the end of the day, the decision rests with each individual justice.
But the ultimate reason for the Supreme Court to adopt ethics rules is to avoid the appearance that Justice can be bought. Justice should be equal for all classes, creeds, and races. It should not be something that the rich can buy their way.
Equal Justice Before the Law.
See Also:
Code of Judicial Conduct
Bill Puts Ethics Spotlight On Supreme Court Justices
