“Juvenile Court” is now in session

The party line from people who work at the Supreme Court, including many of the justices, is that their differences are strictly professional.  The justices behave civilly to each other at all times, and many are good friends.

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.”

Supreme Court majority rewrites facts to avoid deciding constitutional right to a speedy trial in Boyer v. Louisiana

Jonathan Boyer spent seven years in jail waiting for his day in court. Why? Because, as the Louisiana Court of Appeal found, the state refused to adequately fund legal counsel for indigent defendants due to a “funding crisis.” The Louisiana court, although attributing the seven-year delay to the state, ruled that the funding crisis was beyond the government’s control, and thus Boyer’s constitutional right to a speedy trial was not violated. After waiting most of a decade to get into court, Mr. Boyer was convicted after a trial lasting only one week.

Justice Samuel Alito

The Supreme Court agreed to hear Mr. Boyer’s appeal. Today, rather than rule on whether a defendant who is left to rot in jail for years because a state refused to adequately fund indigent defense counsel has been denied his constitutional right to a speedy trial, a conservative majority of the Court simply revised the factual premise of the case. Although the Supreme Court is usually bound to defer to the factual findings of lower courts, Justice Alito – contrary to the findings of the Louisiana court – defended the Supreme Court’s decision to avoid the case by writing that the defendant, rather than the state, was responsible for the delay. In a passage contorting the boundaries of logic, Justice Alito wrote:

The dissent would ignore what the record plainly shows based largely on the Louisiana Court of Appeals’ observation that “[t]he majority of the seven-year delay was caused by the ‘lack of funding.’” . . . But when this statement is read in context, what it most likely means is not that the delay in question was caused by the State’s failure to provide funding but simply that the delay was attributable to the funding issue. And as noted, most of this delay was caused by the many defense requests for continuances of hearings on the issue of funding. If the defense had not sought and obtained those continuances, the trial might well have commenced at a much earlier date—and might  have reached a conclusion far less favorable to the defense.

In other words, it isn’t the state’s fault for inadequately funding indigent defense; it’s the defendant’s fault for daring to challenge the inadequate funding. It is unclear what options are left to the defendant in this situation; should the defendant simply accept shamefully underfunded representation?

Indigent criminal defendants already face daunting obstacles to fair process in our justice system, including overburdened public defenders, lack of sufficient resources to mount a vigorous defense, and a high legal bar to showing constitutionally inadequate counsel. Denial of the right to speedy trial compounds these issues by making it harder to identify, locate, and employ witnesses and evidence at trial. Yet today, rather than stand up for the due process rights of indigent Americans, the Supreme Court chose to bend the facts and add to that burden.

As Justice Sotomayor noted in dissent:

Where a State has failed to provide funding for the defense and that lack of funding causes a delay, the defendant cannot reasonably be faulted. Placing the consequences of such a delay squarely on the State’s shoulders is proper for the simple reason that an indigent defendant has no control over whether a State has set aside funds to pay his lawyer or fund any necessary investigation. . . . States routinely make tradeoffs in the allocation of limited resources, and it is reasonable that a State bear the consequences of these choices.

Linda Greenhouse revisits a prime example of the 1% Court in action

In an excellent column this week, Linda Greenhouse, former Supreme Court reporter for The New York Times revisits a case, Knox v. Service Employees International Union, which Alliance for Justice has been following closely, but much of the media have ignored.

Justice Samuel Alito

Knox illustrates both how the current majority goes out of its way to favor big business, a theme of our most recent First Monday documentary, Unequal Justice, and also the extreme judicial activism of the court’s extreme right – another issue we’ve followed closely.

Greenhouse also cites Prof. Benjamin Sachs who, on this Blog and elsewhere, has argued that, in a post-Citizens United world, the majority’s view gives unions notably less “free speech” than corporations.

As Greenhouse points out, the issue in Knox was narrow and seemingly arcane—whether workers who were not members of the union had been given adequate opportunity to “opt out” of one particular “special assessment” to be used for some political activity.

But the right-wing majority, led by Justice Samuel Alito, seized upon the opportunity to go far beyond this narrow issue.  They questioned whether unions have a right to require non-members to affirmatively “opt out” of any use of their dues for political activity.  They even questioned whether unions have a right to charge dues for non-members at all, even though those non-members, of course, receive all the benefits of collective bargaining agreements.

Greenhouse calls it “flagrant activism.”  She writes: 

In his opinion, Justice Alito denied going beyond the confines of the question the parties brought to the court, but Justice Sonia Sotomayor shredded his defensive assertion in a separate opinion. Joined by Justice Ruth Bader Ginsburg, Justice Sotomayor said the case, as presented, provided no occasion for the majority’s attack on the opt-out rule, let alone its expressions of skepticism about the constitutionality of the agency shop.  …  Justice Sotomayor said: “To cast serious doubt on longstanding precedent is a step we historically take only with the greatest caution and reticence. To do so, as the majority does, on our own invitation and without adversarial presentation is both unfair and unwise.”

Justice Breyer, joined in his dissenting opinion by Justice Kagan, noted that “the debate about public unions’ collective-bargaining rights is currently intense.” He added, “There is no good reason for the court suddenly to enter the debate, much less now to decide that the Constitution resolves it.”

Nan Aron in the Huffington Post on Justice Alito's scary speech

In the Huffington Post, AFJ President Nan Aron writes about the speech Justice Samuel Alito gave at a fundraising dinner for the Federalist Society.  She writes:

Although most of the press coverage of this speech has focused on Justice Alito's full-throated defense of the Citizens United decision and his rationalization of the broadest possible interpretation of the corporate personhood concept (an argument effectively dismantled by the New York Times editorial page), there was another moment in Alito's remarks that I think was more important -- and scary.

Read about that moment in the full column here - and please let the Huffington Post community know what you think by posting a comment.

Talking turkey about rubber chicken – and Supreme Court ethics

While most of us still may be thinking about yesterday’s turkey dinner right now, at Alliance for Justice we’re also thinking about ducks – as in “if it looks like a duck and quacks like a duck …” and chicken, as in the rubber variety often served at fundraising dinners.

What brings all this poultry to mind is the response of the Federalist Society when Alliance for Justice and Common Cause pointed out that, for the second year in a row, a justice of the United States Supreme Court was headlining its annual fundraising dinner.  Were any other federal judge to do this, it would be a violation of the Code of Conduct for federal judges – but Supreme Court justices are exempt.

The fact that the event was a fundraiser is crucial.  We have no problem with Supreme Court justices speaking at events, even when they are hosted by groups with a strong ideological point of view.  Where they cross the line – and ignore the code of conduct – is when their appearance is used to raise money for the organization.

The Federalist Society response, according to the Associated Press: It’s not a fundraiser.  In fact, they say, they even lose money on every meal. 

That’s a curious response given what one finds on the program for the event.  More than 35 major corporations and prominent law firms are listed as “sponsors” of the event.  There are Bronze Sponsors” like Covington and Burling and the Lincoln Financial Group, “Silver Sponsors,” including Jones Day, Patton Boggs, PepsiCo and Facebook, and “Gold Sponsors,” including Chevron, Verizon and Sullivan & Cromwell.  Topping them all is the “Sponsoring Law Firm,” Gibson, Dunn & Crutcher.

So either the hotel where the dinner took place serves the world’s most expensive rubber chicken – or it was a fundraiser.

It’s no wonder that, when the Federalist Society said much the same last year, when Justices Clarence Thomas and Antonin Scalia headlined the dinner, Matt Wuerker, the Pulitzer Prize-winning cartoonist for POLITICO didn’t buy it:

(c) Matt Wuerker

 When it comes to the ethics of speaking at a fundraiser, the success of the event doesn’t matter.  As Prof. Stephen Gillers of New York University School of Law explained in an analysis written for AFJ:

It may turn out that the organization is disappointed because the event does not earn a profit. But that is irrelevant. Judges have an obligation in the first instance to assure themselves that the event will not be a fundraiser. 

It all illustrates, once again, why it’s so important to make the provisions of the Code of Conduct binding on Supreme Court justices.  Since it doesn’t appear likely that the justices will do this themselves, Congress should do it for them.

Oops: They're doing it again: Another Supreme Court Justice flouts ethical standards

Alito speaks at Federalist Society fundraiser, following in ethically-challenged footsteps of Scalia and Thomas

AFJ and Common Cause released this statement today:

WASHINGTON, D.C., Nov. 16 - For the second year in a row, a justice of the Supreme Court has flouted judicial ethics by headlining a fundraising gala for a lawyers group, the Alliance for Justice and Common Cause said Friday.

From the Federalist Society website

Justice Samuel Alito was a featured speaker at the "30th Anniversary Gala Dinner" of the Federalist Society on Thursday night.  Alito’s appearance was the drawing card for the $175-dollar-a-plate event, the society’s website indicates.

Were Justice Alito sitting on any lower federal court, his appearance would violate Canon 4C of the Code of Conduct for federal judges.  That canon explicitly bans federal judges from being featured speakers and guests of honor at fundraising events. The code does not formally apply to the Supreme Court however.

Last year, Justices Clarence Thomas and Antonin Scalia spoke at the same Federalist Society fundraising event.  The annual dinners attract a crowd of more than 1,200 lobbyists, judges and lawyers, including some with high-profile cases before the court. Attendees at Thursday’s dinner, for example, included at least three lawyers involved in cases challenging the constitutionality of the federal Voting Rights Act. Their Washington-based firm, Wiley Rein LLP, was a “silver” sponsor.

Justice Alito has become a regular at such functions, having previously spoken at fundraising events for the American Spectator magazine and the Intercollegiate Studies Institute.  The Institute describes itself as working for "limited government, individual liberty, personal responsibility, the rule of law, market economy and moral norms."

Alliance for Justice President Nan Aron noted that a 2012 Hart Research Associates poll conducted for AFJ found that only 41% of Americans approve of the job the Supreme Court is doing.  "If the public begins to believe that the justices are just politicians in robes, their credibility will further erode."

"In his 2011 Annual Report, Chief Justice John Roberts claimed that 'All members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations,'" Aron said. "But it is clear that they are free to routinely ignore that guidance.  That’s why guidance is not enough.  Either the justices should formally agree to abide by the Code or Congress should require it."

"The words 'Equal Justice Under Law,' are carved into the marble above the entrance to the Supreme Court," said Common Cause President Bob Edgar, "but it’s clear that when it comes to judicial ethics, some members of the court consider themselves better than equal to the rest of the federal judiciary. Their refusal to embrace and abide by the Code of Conduct is disturbing."

Edgar and Aron emphasized that addressing an organization like the Federalist Society is not, in itself, a breach of ethics.  The ethical line is crossed when the justice’s appearance is used to raise money for the organization.

ADDITIONAL RESOURCES

From AFJ:

• AFJ Video: A Question of Integrity and background material about ethics issues and the Code of Conduct

• Analysis of the ethical issues involved in Justices Scalia and Thomas speaking at a Federalist Society fundraiser from Prof. Stephen Gillers of New York University School of Law

From Common Cause:

• Our highest court shouldn’t be held to the lowest standard.
• Hours after considering challenges to health care reform, Supreme Court justices are honored at fundraiser sponsored by law firms representing reform opponents.