Supreme Court Ethics And Reviewing The Health Law

Aug 17, 2011
Originally published on August 17, 2011 9:40 pm
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NPR's legal affairs correspondent Nina Totenberg has the second of two reports on Supreme Court ethics.

NINA TOTENBERG: NYU law professor Stephen Gillers is the author of a leading text on judicial ethics.

STEPHEN GILLERS: The justices really are virtually untouchable. They have to worry about public opinion but they don't have to worry about anything else.

TOTENBERG: American University law professor Herman Schwartz is one of more than 100 law professors who signed the letter calling for a new ethics law that would be binding on the Supreme Court.

HERMAN SCHWARTZ WASHINGTON COLLEGE OF LAW: No person should be in charge in his or her own case.

TOTENBERG: indeed, that was the view expressed by Justice Anthony Kennedy, writing and speaking for the U.S. Supreme Court in an opinion reversing a West Virginia Supreme Court decision. The U.S. Supreme Court said that one of the state judges should have recused himself from the case, because he was the beneficiary of $3 million in campaign spending by the CEO of the company in whose favor he ruled. As Justice Kennedy put it: the judge may have honestly believed he was unbiased but that's not enough.

ANTHONY KENNEDY: The difficulties of inquiry into actual bias, and the fact that the inquiries 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.

TOTENBERG: Many of the justices, nonetheless, have said that they do in fact feel bound by the code. Here are Justices Anthony Kennedy and Stephen Breyer responding to a question at a congressional hearing. First Kennedy, then Breyer.

KENNEDY: Of course, the court has to follow rules of judicial ethics. That's part of our oath.

STEPHEN BRYER: We do follow the rules. They do apply and somehow it's gotten around they don't. Well, they do.

TOTENBERG: Still, the assurances have not satisfied everyone. Congressman Chris Murphy, a Democrat from Connecticut, now has 27 co-sponsors on his bill to make the code binding on the Supreme Court, including its enforcement mechanisms.

CHRIS MURPHY: Without any real disclosure and transparency requirements, without any enforceability on the code of conduct, we're just left at believing the word of the justices.

TOTENBERG: Professor Schwartz.

SCHWARTZ WASHINGTON COLLEGE OF LAW: The Murphy Bill is clearly very flawed. It can't work. There is no question that the code, especially as it applied to justices, would be unenforceable in the sense that somebody would take action against them and slap their hands.

TOTENBERG: The Brookings Institution's Russell Wheeler notes that the Constitution provides for one Supreme Court and if some other group of judges were designated to rule on Supreme Court conflicts...

RUSSELL WHEELER: It probably violates the constitutional mandate that there be one Supreme Court.

TOTENBERG: Any enforcement mechanism is unworkable, adds Professor Schwartz.

SCHWARTZ WASHINGTON COLLEGE OF LAW: First of all, no lower court judge would dare to say, justice so-and-so should have recused him or her self. Secondly, once a justice has made a judgment, the other justices are not going to publicly review that and say, you done wrong.

TOTENBERG: 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. Professor Schwartz.

SCHWARTZ WASHINGTON COLLEGE OF LAW: Not everything depends on a sanction. A lot of rules that we live by are because it's understood that there are certain things you don't do and it helps to have it laid out.

TOTENBERG: Gillers has consistently said that Justice Clarence Thomas has no duty to recuse himself from a case challenging the Obama health care bill because Mrs. Thomas has actively campaigned against the bill. But he contends that, if the court had an informal consultation mechanism in place, Justice Thomas might have consulted his colleagues about his wife's role in advance.

GILLERS: They might say, well, she can do it, but we don't think it's good for us.

TOTENBERG: Harvard Law Professor, Noah Feldman, argues that no change is necessary, noting that the system set up by the founding fathers has served us well.

NOAH FELDMAN: Establishing any form of supervisory body over the Supreme Court, even a supervisory body made up of themselves, would fundamentally change the principle of judicial independence.

TOTENBERG: Or as the Brookings Institution's Russell Wheeler puts it...

WHEELER: This may just be a situation we should live with because any cure is worse than what we have now.

TOTENBERG: Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.