Professor Schwartz Calls for Ethics Reform

Washington College of Law Professor Herman Schwartz today authored an op-ed in Politico, calling for the application of mandatory ethical rules to justices on the Supreme Court. Comparing the justices’ lifetime tenure and immense power to the closest thing America has to “absolute monarchs,” Schwartz notes that in return, we expect them to act ethically.

Today, Supreme Court justices are subject to virtually no ethical standards — except those they impose on themselves. That is not good enough.

The official Code of Conduct for United States Judges is not applicable to justices. It should be. Though legally unenforceable, it establishes specific standards of conduct that no justice is likely to ignore as casually as some seem to do now.

The issue of Supreme Court recusal has been gaining more and more attention lately as challenges to the health care law make their way through the courts.

In today's column, Schwartz goes on to detail a number of examples of justices engaging in conduct that would likely violate the Code of Conduct, if it applied to them, such as Justice Alito headlining a fundraising event for the conservative American Spectator, and Justices Thomas and Scalia attending a political strategy meeting organized by the Koch brothers:

We don’t know why Scalia and Thomas were at these partisan meetings and what they did. And there is no established procedure for finding out. Supreme Court justices answer to no one for what they do.

When their conduct is questioned, they respond either in self-righteous indignation (as Scalia has) or charge their questioners with being “bent on undermining the court” (as Thomas has) or just dismiss the matter as “not important” (as Alito did).

There is no justification for such arrogance. The justices are public servants and should be just as responsive to valid questions about the propriety of their conduct as the lowest GS-1.

What seems beyond dispute is that all three justices engaged in conduct inconsistent with the Code of Conduct for United States Judges, which requires that a judge “not personally participate in fundraising activities; or use or permit the use of the prestige of judicial office for that purpose, … make speeches for a political organization or attend or purchase a ticket for a dinner or other event sponsored by … an entity whose principal purpose is to advocate for or against political candidates.”

For reasons unknown, however, neither this code nor any other applies to Supreme Court justices. According to court spokeswoman Kathy Arberg, “justices look to the code for guidance.” Some justices apparently don’t look often.

Schwartz also went on to call for a process of oversight for recusal decisions at the Supreme Court, where none exists now. Currently, each justice is allowed to decide for him or herself whether or not to recuse. Schwartz explains that this runs afoul of a longstanding principle: "it is axiomatic that no one should be a judge in his or her own case." To remedy this problem, he suggests there be a randomly selected panel of Supreme Court justices, including retired justices, to decide recusal requests.

Schwartz ended by calling on Congress to remedy this problem by passing legislation that would make the Code of Conduct applicable to the Supreme Court, and revising the recusal process.

No one expects Supreme Court justices to live apart from society. But when they allow themselves to be “featured” at political fundraisers and strategy sessions or don’t withdraw from cases where they seem to have a conflict of interest, they truly “undermine the court.”

Congress should move quickly on this matter — it is time for the justices to live by the same rules as all other federal judges.

To learn more about judicial ethics reform, click here.