But it seems at least one Justice, Samuel Alito, didn’t get the memo. Indeed, a case can be made that Justice Alito’s conduct could have violated the Code of Conduct for United States Judges – if not for the fact that the justices of the Supreme Court are the only federal judges in the U.S. who are exempt from that code.
The Atlantic’s Garrett Epps described the scene last week as the justices read aloud portions of their decisions in two cases involving discrimination and harassment in the workplace:
After both opinions had been read, [Justice Ruth Bader] Ginsburg read aloud a summary of her joint dissent in the two cases. She critiqued the Vance [v. Ball State University] opinion by laying out a "hypothetical" (clearly drawn from a real case) in which a female worker on a road crew is subjected to humiliations by the "lead worker," who directs the crew's daily operation but cannot fire or demote those working with him. The Vance opinion, she suggested, would leave the female worker without a remedy.
|Justice Samuel Alito Sean Penn in Fast Times|
at Ridgemont High
At this point, Alito pursed his lips, rolled his eyes to the ceiling, and shook his head "no." He looked for all the world like Sean Penn as Jeff Spicoli in Fast Times at Ridgemont High, signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand.
The offense against decorum is greater when the object of scorn is a woman 17 years his senior, one who is acknowledged even by most of her critics to have spent a distinguished career selflessly pursuing justice in the precise area of her dissent--gender equality in society in general and the workplace in particular. Her words are as worthy of respectful attention as were his.
I found it as jarring as seeing a Justice blow bubblegum during oral argument.The behavior would be appalling at any time, but even more so given that one of the cases at issue, Vance v. Ball State University, involved, in part, the protection of workers from boorish behavior by others in the workplace. Alito’s majority opinion weakened those protections.
This time Alito’s puerile behavior was directed toward one of the Court’s three woman justices. The last highly publicized time he behaved this way the behavior was directed toward an African American: the President of the United States. It was during a State of the Union address, when President Obama dared to “dissent” from the majority ruling in Citizens United.
Given this track record, we wonder if Alito would have behaved the same way had the dissent in Vance been written by, say, Justice Stephen Breyer.
All of this reminds us of another judge behaving badly. One of the reasons a complaint has been filed against Fifth Circuit Court of Appeals Judge Edith Jones is the fact that she told one of her colleagues to “shut up” from the bench.
This part of the complaint against her cites Canon 1 of the Code of Conduct for United States Judges, which states that “[a] judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.” The commentary states that “violation of this Code diminishes public confidence in the judiciary and injures our system of government under law.” One of the factors when determining if disciplinary action is appropriate is “whether there is a pattern of improper activity . . . .”
The code also bars federal judges from speaking at fundraising events for political groups – as Alito did last year for the Federalist Society.
But the Code does not apply to Samuel Alito – or any other Justice of the Supreme Court. We documented that failure, and the consequences, in our video A Question of Integrity: Politics, Ethics and the Supreme Court. We’ve been campaigning for legislation to require the Supreme Court to follow the code. Soon, Senators Richard Blumenthal and Chris Murphy and Rep. Louise Slaughter will introduce such legislation.
Another bill also could be helpful in a situation like this.
Because his response to the president was during a State of the Union address, it was seen on national television (indeed, you can see it on the same webpage as Epps’ article). Perhaps Alito felt he could pull the same stunt again because this time, no one outside the courtroom actually would see his antics – they could only be described by those who were there. That would change, of course, if Supreme Court proceedings were televised.
Sen. Dick Durbin, D-Ill., a Senator with whom we often agree, and Sen. Charles Grassley, R-Iowa, a senator with whom we agree less often have introduced legislation to require that the Court’s public sessions be televised.
“People of reasonable minds may disagree on the proper outcome of … cases …,” Sen. Durbin says, “but we can all agree that the American public deserves the opportunity to see firsthand the arguments and opinions that will shape their society for years to come.”
The public also deserves to see it when one of the nation’s most powerful judges is giving a whole new meaning to the term “juvenile court.”