A Question of Trust

U.S. Senator Chris Murphy has introduced a bill that would require the Supreme Court to develop a code of ethics. (Surprising at it may seem, the high court does not have such a code, although all other courts do.)

The bill was prompted by several recent controversies over judicial recusal, especially a number of cases in which Scalia–who has grown more voluble and intemperate over the years– has spoken publicly on the merits of cases that were highly likely to come before the Court (historically, and under existing codes of ethics, a judicial no-no) and then refused to recuse himself when the cases were argued.

There has also been considerable criticism of Justice Thomas, who has failed to recuse himself in cases where his wife has a clear interest in the result. Justice Kagan has been criticized for sitting on cases in which she was involved to some extent as Solicitor General.

As a scholar of constitutional courts noted on a listserv the other day, “the US is still rare in the world in making recusal of a judge a matter for the personal decision of that judge, without any way to contest it.  In the German Federal Constitutional Court, for example, the decision to remove a judge from a particular case is made by the rest of the judges in that Senate with the judge in question not participating.    We should have some comparable process here.”

Codes of ethics are about more than recusal, of course. They are centered on avoiding even the appearance of impropriety, in recognition that the legitimacy of public institutions and especially the Courts is dependent upon public trust.

Ethics codes typically limit the value of gifts that may be accepted, or forbid their acceptance at all. That includes junkets, generously paid speaking engagements, and other activities or favors that might produce bias. And most codes of ethics require a measure of disclosure significantly greater than is current Court practice.

In a government based on separation of powers, the legislature may lack the authority to tell the Court to clean up its act–and the Court gets the final word on that issue. In a Court as ideologically divided as this one, I suppose decisions about recusal could themselves become politicized. The GOP’s Tea Party wing will probably oppose Murphy’s bill, since most of the shenanigans these days are by conservative jurists. So passage of this measure is hardly a slam-dunk.

That said, it really is indefensible that the Supreme Court exempts itself from ethical principles that apply to other judicial and administrative entities. Even Congress has a Code of Ethics, however honored in the breach it may be.

When Justice Scalia goes duck hunting with a litigant (Dick Cheney) whose case is then pending before the Court; when Thomas sits on a case despite the fact that his wife’s organization is an interested party, I think skepticism about their ability to render a dispassionate verdict is understandable–and foreseeable.

Such behavior erodes the public trust, and it greatly diminishes the stature of the Court.

There is a reason Courts should be–and be seen to be–incorruptable. They are, after all, in the business of disappointing litigants; every time someone wins, someone else loses. If credible charges of favoritism or bias can be leveled, even if untrue, citizens ultimately lose respect for the rule of law.

Judges–especially Supreme Court Justices– used to take great pains to avoid the slightest appearance of impropriety; they used to aspire to be “as pure as the driven snow.” Lately (as Mae West memorably put it), they’ve drifted.