At times of partisan stress in American Politics, the Supreme Court often becomes part of the game, and the ethics of individual justices become a focus of criticism.
Liberal groups are leading the charge now.
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 that he had misunderstood the law's requirements.
More incendiary in publicity terms was the very public role played by his wife as co-founder, president, and CEO of Liberty Central, a political group, which advertises itself as linked to the Tea Party movement.
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 Steven 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, neither the identity of those or 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.
"You don't want to do something that's unseemly because you can," he says.
There are indications 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 press, 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 up front?"
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 that 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.
In response to stories suggesting ethical shortcomings by conservative justices, Judge Laurence Silberman, a well known conservative appeals court judge, blasted critics as "hypocrites pushing phony concerns." The "real ethical concern," he said, should be the activities of retired Supreme Court Justice Sandra Day O'Connor, who has actively spoken out against state judicial elections, while still sitting from time to time as a federal judge on the lower courts.
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."
Harvard law professor and Supreme Court historian Noah Feldman says both the left and the right have used ethics as a tool for delegitimizing the opposition.
"Criticism on ethics issues is often a proxy for political disapproval with how you expect a justice to vote," he says. Beyond saying that a justice has "a bad interpretation of the constitution," if you can say the justice "is unethical, then you've switched the conversation in a way that can sometimes be politically powerful."
Feldman doesn't deny that there can be ethical violations, but doubts the threat of such violations is significant.
"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 courts 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.
And that, of late, has provoked a volley of criticism, not just from liberal groups, but also from many of the nation's leading newspapers and scholars. NYU's Gillers calls the justices "untouchable."
More than 100 law professors from around the country signed a letter calling for a new ethics law that would be binding on the court. One of the signers, American University law professor Herman Schwartz, points to the maxim that "no person should be a judge in his or her own case."
Indeed, that was the view expressed by Justice Anthony Kennedy for the court itself in an opinion reversing a West Virginia Supreme Court decision because of the failure of one of the state judges to recuse himself. The judge should not have participated in the case, the court said, because he was the beneficiary of $3 million in campaign spending from the CEO of the coal company the judge sided with in the case. As Justice Kennedy put it, the judge may have honestly believed he was unbiased, but that is not enough:
"The difficulty of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules. Otherwise there may be no adequate protection against the judge who simply misreads or misapprehends the real motives at work in deciding the case."
So what are the rules for Justice Kennedy and his colleagues?
There are two sets of ethics rules that govern the federal courts. The first is a statute that applies to all federal judges, including Supreme Court justices. The statute has a general rule that bars a judge from participating in any case in which his or her impartiality might reasonably be questioned. The statute then spells out specifics — a judge must recuse himself if he has even one share of stock in a company that is a party to a case, or if a close family member has a financial interest, or if the judge participated in the case while a lawyer or government official. Again, these are legal requirements that apply to all federal judges, including Supreme Court justices.
Then there is the judicial Code of Conduct, which applies only to lower federal court judges. The code is described by experts as an advisory or aspirational set of guidelines. It says for example, that judges should not join discriminatory clubs, and should not fundraise. While the code is aspirational, judicial disciplinary committees can and do rely on it in admonishing judges when they step over the line.
The Code of Conduct, however, does not purport to apply to Supreme Court justices, a fact which has provoked much of the editorial page criticism. Many of the justices, nonetheless, have said that they do in fact feel bound by the code.
"Of course the court has to follow rules of judicial ethics — that's part of our oath," said Justice Kennedy in Congressional testimony this year. Justice Stephen Breyer wholeheartedly agreed, declaring "We do follow the rules. They do apply. And somehow it's gotten around they don't. Well, they do."
Indeed, Kennedy noted that some justices have sought advice from a judicial ethics committee that renders advisory opinions to lower court judges. Retired Justice Sandra Day O'Connor has said she and her colleagues often consulted each other when facing an ethics question when she was on the court. And Breyer has pointed out that he has consulted leading ethics experts, such as Professor Gillers.
There are some complicating factors that Supreme Court justices face. When a lower court judge has a potentially disqualifying situation, he or she can easily be replaced by another judge. Not so a Supreme Court justice. Indeed, a Supreme Court justice has a duty to sit if possible, and not leave a case to a potential 4-4 tie.
For this reason, for example, Justice Breyer, who had worked as a Senate staffer on the law setting up a federal sentencing guidelines system, consulted Professor Gillers about whether he should sit on a case challenging the constitutionality of the guidelines. Gillers said that because Breyer had not been involved in the prosecution or defense of the particular case before the Court, he was free to sit.
Still, such assurances have not satisfied the critics. Rep. Chris Murphy (D-CT) has 27 cosponsors on legislation to make the code of binding on the Supreme Court, and the bill has enforcement teeth.
"Without any real disclosure and transparency requirements, without any enforceability on the code of conduct, we are just left believing the word of the justices," Murphy says.
But even those who agree that the code should be binding on the court see the Murphy bill as problematic.
American University's Professor Schwartz calls the bill "clearly very flawed."
What's more, he says, "it can't work." There is no constitutional or practical way, he says to make the code enforceable on the justices "in the sense that someone would take action against them and slap their hands."
First of all, he observes, "no lower court judge would dare say, justice so and so should have recused him or herself. Secondly, once a justice has made a judgment, the other justices are not going to publicly review that and say you done wrong."
The Brookings Institution's Wheeler notes that the Constitution provides for "one Supreme Court," and if some other group of judges were designated to rule on Supreme Court ethical conflicts, he says it would "probably violate the constitutional mandate" for one Court.
A variety of experts, however, believe the lack of an enforceability mechanism should not prevent the code of conduct from being made binding on the court.
"Not everything depends on a sanction," says American University's Schwartz. "A lot of rules that we live by are because there are certain things that you don't do, and it helps to have it laid out."
Professor Gillers says the Supreme Court itself could solve the perception problem by announcing that the court as an institution has voted to apply the code of conduct to its members, possibly with some modifications dealing with the duty to sit. And he suggests that the court adopt some informal way for the justices to get advisory opinions from each other about prospective conduct.
Gillers points to the political activism of Justice Thomas' wife Virginia as a case in point. If the court had an informal consultation mechanism in place, Justice Thomas might have consulted his colleagues about his wife's role in as CEO of Liberty Central before she took the job. That way he could have gotten their input not only on whether her role would put his participation in cases in jeopardy under the Code of Conduct, but also whether her role would harm the court as an institution.
With the ethics rules clearly allowing her to do it, Gillers observes, the other justices might have said "she can do it, but we don't think it's good for us."
Harvard's Professor Feldman argues that no change in the court's ethical procedures is necessary. The system set up by the founding fathers has served us well, he says. "Establishing any sort of supervisory body over the Supreme Court, even a supervisory body made of themselves, would fundamentally change the principle of judicial independence."
Or, as the Brookings Institution's Russell Wheeler puts it, "This may just be a situation we live with because any cure is worse than what we have now."
Absent a headline case of abuse that truly inflames public opinion, that attitude is likely to govern the court for some time to come.