Law Profs Urge Ethics Rules for Supreme Court Justices

More than 100 law professors have signed on to a letter released today that proposes congressional hearings and legislation aimed at fashioning "mandatory and enforceable" ethics rules for Supreme Court justices for the first time. The effort, coordinated by the liberal Alliance for Justice, was triggered by "recent media reports," the letter said, apparently referring to stories of meetings and other potential conflicts of interest involving Justices Antonin Scalia and Clarence Thomas among others.

The professors note that the Court is not covered by the code of conduct that lower federal court judges are required to follow. The Supreme Court has long said it looks to the code for "guidance" -- a concession which, the signers agree, "has proved insufficient." The letter also points out disapprovingly that individual justices alone decide whether they should or should not recuse in a given case, not subject to review by anyone else, and with no requirement to explain their decisions. We delved into the recusal issue in a recent story in our newsletter Supreme Court Insider (subscription required.)

"Adherence to mandatory ethical rules by justices, and requiring transparent, reviewable recusal decisions that do not turn solely on the silent opinion of the challenged justice will reinforce the integrity and legitimacy of the Supreme Court," the letter asserted.

The professors directed their letter to the leaders of the Senate and House Judiciary Committees, with an eye toward hearings and legislation that would apply and enforce the code of conduct on Supreme Court justices, and impose rules for transparency and review of justices' recusal decisions.

In making their case, the professors invoked the Court's own language from the 2009 decision in Caperton v. A.T. Massey Coal Co., which disapproved of a state judge's refusal to step aside from a case that involved a major campaign donor. "Judicial integrity is," the Court said, "a state interest of the highest order."

Alliance for Justice president Nan Aron said her group became involved with the letter-writing effort after consulting with some legal ethics experts in the context of the growing controversy over meetings with conservative groups by Thomas and Scalia, as well as lobbying activities by Thomas's wife Virginia. "They were alarmed about what was happening," said Aron, so she agreed to "shepherd" the professors' letter through to fruition. "The time is overdue," Aron said, for new ethics rules for the high court.

Among the signers are leading names and experts on legal and judicial ethics, including Stanford Law School's Deborah Rhode, George Washington University Law School's Stephen Saltzburg and Alan Morrison, James Alfini of South Texas College of Law, Yale Law School's Lawrence Fox, Amanda Frost and Herman Schwartz of American University Washington College of Law, Northwestern University School of Law's Steven Lubet and Ellen Yaroshefsky of Benjamin N. Cardozo School of Law.

Notably absent, however, was Stephen Gillers of New York University School of Law, perhaps the best known legal ethics expert nationally. Asked about the letter today, Gillers said he agreed with most of it, but parted ways with the group over the recusal issue. Requiring justices to submit their recusal decisions for review by other justices, he said, could lead to "the appearance of opportunistic behavior" aimed at keeping a colleague on or off the case, and could spoil the Court's collegiality. Citing the current "highly politicized" debate over justices' ethics, Gillers also said he would rather that hearings and legislation take place "in a more neutral time."

Comments

[Ray Metz]

The Romans summed it up best: "Judici satis poena est, quod Deum haste ultoren."

For professors with questionable motives, this translates: "It is punishment enough for a judge to have God as his avenger."

[Louis]

I think independence recusal on be half of a Supreme court justice should remain with the individual Justice. A justice should remain , at will, to determine if he or she has conflict with a case in which he or she has direct or indirect ties with the parties involved. The supreme court justices in our system are the creme of the crop individuals with sound moral turpitude and quality, so to undermine their ability to decide rather they , as individuals , should check in with colleagues to decide if rather they should recuse themselves , base on bias, is totally undermining our judicial system and should not be considered as trustworthy.

[Randall Bart]

I think I am more comfortable with the Supreme Court remaining independent.

[Richard Brownell]

Funny how these sorts of things only seem to be an issue when conservative justices are involved.

[DrBeak]

Separation of Powers anyone?

[Amy Menkes Stoody]

I spoke about recusal accountability recently on CBS radio; there is essentially no governing body to oversee our Supreme Court Justices and to guide them in looking not only to bias but even the "appearance of impropriety."

Former Chief Justice Rehnquist said in response to questions by Senators about the Scalia-Cheney duck-hunting trip years ago "[w]hile a member of the court will often consult with colleagues as to whether to recuse in a case, there is no formal procedure for court review of a justice in an individual case.". "This is because it has long been settled that each justice must decide such a question for himself.". What this means, essentially, is that The Supremes reign supreme. They are our model of conduct; without governance there most certainly will be the potential for abuse or perceived abuses.