Scalia’s latest: Unethical or merely appalling?

We’ve all seen it before:

• Justice Antonin Scalia makes comments that are appalling in their racial insensitivity.
• Justice Antonin Scalia skates right up to the line of ethical impropriety.

But this time Scalia managed to do both at once, while discussing the Voting Rights Act in remarks at the University of California Washington Center this week.

Justice Antonin Scalia

Even as Scalia and his colleagues consider a challenge to a key provision of that law, Scalia chose this forum to elaborate on a claim he first raised during oral arguments, when he called the law a “perpetuation of racial entitlement.”  This week, he echoed that claim, calling the law an “embedded” form of “racial preferment.”

To support his claim he declared that that it was unfair for his current home state, Virginia, to have to clear changes to its voting laws with the Justice Department in advance when other states did not.  He suggested that there could not possibly be a racial bias problem in Virginia since that state once elected a black governor and most other states haven’t.  He neglected to mention the state’s far more recent efforts to suppress the votes of the poor and people of color through restrictive voter I.D. laws.  (We have more on the need for the Voting Rights Act on our website here.)

But most disturbing was this.  According to The Wall Street Journal, Scalia said that:

merely holding minority status should not insulate one from majoritarian policy choices. “Child abusers” are a minority, for instance, but they should not receive special protection as a result, he said.

Presumably, Scalia thought this hypothetical would bolster his efforts to deny equal protection to a whole slew of Americans – such as women, the mentally ill, and the LGBT community.

There is one crucial difference between making such callous, insensitive remarks during oral argument and making such callous, insensitive remarks elsewhere while the case is pending: judicial ethics.

We have long argued that the Code of Conduct for U.S. Judges, which applies to all other federal judges, should apply to Supreme Court Justices as well.  It was the topic of this brief AFJ documentary:


But since it does not, Scalia is off the hook no matter what.

If Scalia’s remarks had been uttered by a judge on whom the code is binding, they may very well have been in violation of the code – and at the very least would come right up to the edge of what is permissible.  The code says:

A judge should not make public comment on the merits of a matter pending or impending in any court. [Canon 3A(6).]

Although the code makes an exception for “scholarly presentations made for purposes of legal education,” the commentary to this part of the code advises judges commenting on cases from their own court to “take particular care so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality … .”

That’s because the code prohibits conduct that gives even the appearance of impropriety. [Canon 2A.] 

This is not the first time Justice Scalia’s behavior has raised questions about ethics.

• At the same event this week, Justice Scalia indicated his likely vote on another pending case involving the powers of the Federal Communications Commission. 
• In 2011, Justices Scalia and Thomas spoke at a fundraising event for the ultra-conservative Federalist Society.  While federal judges subject to the Code of Conduct can speak to any organization they want, the code bars them from speaking at fundraisers.  Justice Samuel Alito spoke at the same event last year. 
• As we noted in our report on Supreme Court ethics, Justices Scalia and Thomas reportedly have each attended at least one invitation-only retreat hosted by Charles and David Koch, co-owners of Koch Industries, the second largest private corporation in the United States.  The purpose of the Koch retreats is overtly political.

Whether Scalia crossed the line this time or just came very, very close, with each passing year it becomes more urgent to make Scalia, Thomas, Alito and all the other Justices subject to the code of conduct.

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.

New York City Bar Association to Supreme Court Justices: More transparency, please

As Tony Mauro reports in The National Law Journal, the lack of transparency in Supreme Court recusals - decisions by the justices not to participate in some cases - continues to attract public attention as the justices delve into high-profile cases. The New York City Bar Association issued a report this month calling for the justices to publicly disclose explanations for their recusal decisions, including decisions both to participate and to recuse. As the report explains:

Opening the Court's 'black box' in this limited respect will help the parties and the public to have confidence that the judicial oath to hear cases 'faithfully and impartially' is honored in practice by the highest court in the land.

Currently, the justices’ decision to recuse or participate in a given case truly is a “black box.” Each justice is the sole decider of whether or not to recuse, and there is no requirement that he or she explain this determination. Furthermore, the justices are not bound by the same Code of Conduct that applies to every other federal judge. The result is a process that lacks accountability and transparency for the nine most powerful jurists in America.

As the New York City Bar Association report notes, transparent and public recusal decisions would “achieve the dual purpose of informing the public of the justice's reasoning and forcing the justice to examine his or her biases.” Additionally, in an era in which the Court is increasingly viewed as a political institution by a skeptical public, “[w]hile there may be some negative public reaction to certain disclosures, on the whole additional transparency should improve the public's perception of the court."

Read more about AFJ’s advocacy for judicial ethics reform, and watch our 2011 film A Question of Integrity to learn about the importance of an accountable, ethical, and transparent Supreme Court.

A Question of Integrity Screening at Catholic University

Tuesday, Alliance for Justice screened “A Question of Integrity: Politics, Ethics and the Supreme Court” at Catholic University of America’s Columbus School of Law in Washington, D.C.  The screening hosted by the law school’s America Constitution Society chapter was enthusiastically received by over 70 law students eager to know more about the Code Conduct for U.S. Judges and why the Court is not required to follow it, as well as the Ethics in Government Act and the current process for recusal.

AFJ’s Dorot Fellow Ashley Smith led the discussion period fielding thoughtful, challenging questions about the need for more transparency in the recusal process, if justices attending fundraising events adds to more transparency rather than hinders it,  and if politics have invaded this current court so thoroughly that it’s not just infeasible but naïve for litigants to demand or even expect impartiality to still be the law of the courtroom. 

CUA law professor Suzette Malveaux introduced the film and even asked a few tough questions herself about the inevitability of friendships between justices and other powerful government officials and the practicality of requiring every justice who has a relationship with an official to recuse. Ms. Smith’s response was, “Not every justice; just the ones who know that the official will appear in his or her court before they agree to go duck hunting with him!”

The discussion ended with the hope, but not a full-fledged demand, that all justices, conservative or liberal, be held to the highest ethical standards. “A lot of it I have a problem with, a lot of it I don’t. It’s not so black and white,” as one student said after the screening.

But when it comes to ethics and the highest court of the land, too much gray can be the difference between maintaining this country’s legacy of belief in an impartial and unbiased system of law, or turning our backs on it. However, as Prof. Malveaux suggested, the discussion itself helps assure us that the legacy will continue.

A Question of Integrity Receives Telly Award

We're very pleased to announce that AFJ's original short documentary, A Question of Integrity: Politics, Ethics, and the Supreme Court, has been honored in the 2012 Telly Awards.

A Question of Integrity received a bronze award in the category of Non-Broadcast Productions - Charitable/Not-for-profit. The Telly Awards honor excellence in non-broadcast and online video, as well as local, regional, and cable TV commercials. Bronze and silver awards are given in each category.

Past AFJ documentaries, including Crude Justice (2010), Tortured Law (2009), and Supreme Injustices (2007), were also recipients of Telly Awards.

Bringing ethics reform to the Court's front door

Nan Aron with Congresswomen Eleanor Holmes Norton and Louise Slaughter

Alliance for Justice President Nan Aron yesterday joined members of Congress, several concerned organizations, 212 law professors, and over 100,000 citizens in calling for the Supreme Courtto voluntarily agree to formally adopt the Code of Conduct for U.S. Judges and put an end to the ethical ambiguity that has damaged public confidence in the Court and its justices.

Speaking at a press conference on the steps of the Supreme Court along with Congresswomen Louise Slaughter and Eleanor Holmes Norton and Congressman Earl Blumenauer, Aron called for immediate ethics reform, saying, "It's no secret that this is going to be a landmark year for the Supreme Court. There will be big cases and intense public scrutiny. If there ever was a time for the Court to buttress public confidence in its propriety and objectivity, this is it. With so much at stake, there must be no hint of favoritism or bias. We can't afford to have any questions of integrity looming over the justices."

The Rochester Democrat & Chronicle reported:

Joined by Democratic Rep. Earl Blumenauer of Oregon and Democratic Del. Eleanor Holmes Norton of the District of Columbia, [Rep. Louise] Slaughter said 31 members of Congress have signed a letter to Chief Justice John Roberts urging the court to formally adopt a judicial code of ethics...

Similar letters have been sent by government watchdog groups and more than 200 law professors.

The letters were prompted by reports over the last three years that Supreme Court justices have spoken at fundraisers for advocacy groups such as the Federalist Society, the Intercollegiate Studies Institute, the Heritage Foundation and the National Association of Broadcasters.

With controversial cases pending this year involving affirmative action and the constitutionality of the 2010 health care reform law, "there should not even be a hint of bias or favoritism’’ on the court, Nan Aron, president of the Alliance for Justice, said.

In addition, Professor William Yeomans of the Washington School of Law at American University, unveiled a letter signed by 212 law professors asking the Supreme Court itself to initiate the process of formally adopting the Code of Conduct. A copy of the letter can be downloaded here.

Following the press event, Alliance for Justice co-hosted a briefing for Congressional staffers. The briefing featured an all-star panel consisting of Yeomans, Dahlia Lithwick of Slate, and Sherrilyn Ifill of the University of Maryland.

Many of the issues raised in the press conference and the staff briefing are addressed in AFJ's short documentary film, A Question of Integrity: Politics, Ethics, and the Supreme Court. You can watch the entire film online at YouTube now.

Click here for a gallery of photos from the day's events.

Asking the Supreme Court to Do the Right Thing

The Alliance for Justice and ten other reform-minded organizations have sent a letter to the justices of the Supreme Court calling upon them to formally and voluntarily bind themselves to the Code of Conduct for United States Judges.

The Code of Conduct applies to all other members of the federal judiciary; only the nine justices of the Supreme Court are exempt. The members of the Court state that they look to the Code for guidance and act as if bound by it; however, behavior by some of the justices, including attending and speaking at overtly political gatherings and participating in fundraisers, belies this claim.

We call on the justices of the Supreme Court to take affirmative action to assure the public of their commitment to the highest standards of ethics by formally adopting and binding themselves to the Code of Conduct, action they can, and should, take on their own.

Add your voice! Sign our petition to Chief Justice Roberts and ask that the Supreme Court voluntarily adopt the Code of Conduct.

A Question of Integrity: San Francisco Premiere

On Monday evening, Alliance for Justice teamed with California Common Cause and CREDO Action for the screening of the new AFJ film “A Question of Integrity: Politics, Ethics, and the Supreme Court.” After the screening of the film, there was a panel discussion featuring experts on the issue, followed by a Q&A with the audience.

Lee Fang, the investigative researcher and blogger at ThinkProgress who discovered the participation of Justices Thomas, Alito, and Scalia at secret meetings, including big-ticket fundraisers held by conservative political funders, explained how he had been investigating the Tea Party in 2009 when he learned that the billionaire Koch brothers and various industry groups were funding Tea Party activism. Then, in October of 2010, Fang received an anonymous package about a Koch brothers policy summit being held in Southern California in early 2011. Digging deeper, Fang found that these events had been taking place regularly, and had advertised the presence of Supreme Court Justices Thomas and Alito. Fang actually confronted Justice Alito at one of these events, asking him whether he felt like his presence there was appropriate, to which Justice Alito responded that his presence there was "not important."

Richard Zitrin, Professor in Legal Ethics at the University of California-Hastings, said it is unconscionable that Supreme Court justices would be taking part in these kinds of activities, which would violate the Code of Conduct for U.S. Judges that applies to all other federal judges. Zitrin was adamant that, because Supreme Court justices are afforded such respect by our legal system, it makes no sense to hold them to a lower standard than other federal judges when it comes to the appearance of impropriety.

Derek Cressman, the Western States Regional Director at Common Cause, has been on the trail of the Kochs – and many of their ethically questionable political practices – since the revelation of their secret retreats. He noted that Supreme Court justices should not have to sequester themselves, but they should refrain from participating in events where they appear to be cozying up to major political funders.

Judge Marilyn Patel, showed deference to her colleagues on the bench and did not address calls for justices to resign, but she explained that, for justice to be administered, there cannot be any appearance of judicial impropriety. She added that there is a strong argument that the Code of Conduct as it is currently written is actually applicable to Supreme Court justices, notwithstanding the justices’ current view that it is not binding. Moreover, she explained that, because Supreme Court justices are given lifetime tenure, we need to confirm justices who will uphold high ethical standards.

Zitrin suggested that, although he generally does not like litmus tests for determining judge qualifications, pledging adherence to the Code of Conduct, whether or not it is currently required of the justices, should be necessary for any nominated justice to be confirmed in the Senate.

Asked about the distinction between appearing at an event and at a fundraiser, Judge Patel cited guidance by the Administrative Council of Courts advising against participation by judges as keynote speakers at fundraisers for nonprofits. As far as whether it is hard to determine if an event is a fundraiser, she noted that she confirmed with Alliance for Justice that Monday's film screening and panel discussion was not a fundraiser before agreeing to participate. She also said that if a judge is asked to speak at a $250 per plate event, that event is obviously a fundraiser, and any judge who is unable to determine that would “really be out of touch.”

Judge Patel noted that some people oppose recusal by Supreme Court justices because they cannot be replaced by another judge when they abstain from hearing a case. She responds to that argument by pointing out that if the justices were to simply comply with the Code of Conduct, there would rarely be a need for them to recuse themselves.

The film premiered in Washington on November 1, and a New York premiere screening is planned for early December. Stay tuned for more information on future screenings!

For more on judicial ethics and to view the film, please visit www.aquestionofintegrity.org.

A Shockingly Clear Case for Reform

Last night in Washington, the conservative Federalist Society held a black-tie fundraising dinner with featured speakers Antonin Scalia and Clarence Thomas.

The New York Times took note:

If they were mere federal judges they could not have accepted the invitation, because Canon 4(C) of the Code of Conduct for United States Judges prohibits personal participation in fundraising activities. It states that judges should not “solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose.”

It’s an excellent rule and it would apply to the Federalist Society’s $175 a plate, sold-out dinner, which is clearly a fundraiser, with Justices Scalia and Thomas the star attractions in the black-tie optional event billed as “A Celebration of Service.”

The problem is that Supreme Court justices are not bound by Canon 4(C).

There's nothing stopping the Court from voluntarily adopting the same Code of Conduct that binds every other federal court, and putting an end to the kind of behavior that has left many Americans wondering if Supreme Court justices are becoming "politicians in robes."

What's standing in the way of reform?

The Code of Conduct for U.S. Judges lays out ethical guidelines to protect the integrity of our judicial system, and its rules bind every federal judge... except nine. Can you guess which?

That's right... the Code of Conduct for U.S. Judges applies to every federal judge except the nine justices of the Supreme Court.

As Slate.com Senior Editor Dahlia Lithwick put it in AFJ's latest film, "When you tell people that the Code of Conduct applies to everyone but Supreme Court justices, they think it's a joke. That's how preposterous it is."

But we can change that, right now. Sign our petition and send a message to Chief Justice John Roberts and let him know that it's time for every Supreme Court justice to follow the same rules that govern every other federal judge in America.

Several Supreme Court justices have recently made headlines by engaging in behavior that likely would not be permitted if they sat on lower courts.

• Justice Alito has headlined fundraisers for right-wing groups such as the American Spectator magazine.
• Justices Scalia and Thomas attended political strategy and fundraising conferences hosted by the ultra-conservative billionaire Koch brothers. The justices have also allowed their names to be used to draw attendees.
• Justice Thomas maintains a relationship with conservative funder Harlan Crow that stretches the appearance of unethical behavior beyond the breaking point.

There's nothing stopping the Court from voluntarily adopting the Code of Conduct and putting an end to the kind of behavior that has left many Americans wondering if Supreme Court justices are becoming "politicians in robes."

Click here to send a message to John Roberts. Tell him that the Court could voluntarily adopt the Code of Conduct RIGHT NOW and put these fears to rest by preserving the integrity of our nation's highest legal institution.

Reform can happen. The same Code of Conduct that's good enough for every other federal judge is good enough for the nine justices of the Supreme Court. Take action today and make sure that Chief Justice Roberts understands that his Court faces a question of integrity... and that his answer can protect the Court from harmful poltical influence.

A Question of Integrity Premieres in Washington

Last night in Washington, Alliance for Justice premiered our latest short documentary film, A Question of Integrity: Politics, Ethics, and the Supreme Court.

A Question of Integrity examines growing concerns about ethically questionable and overtly political behavior by some Supreme Court justices, and explores the need the need to apply the same ethical standards that govern every other judge in the federal court system to the nation's highest court. Viewers are called to action in support of reforms essential to preserve the integrity of our most important legal institution.

The film played to a full room at Washington’s historic E Street Cinema, and was followed by a lively question-and-answer session with Slate Senior Editor Dahlia Lithwick and American University Fellow in Law and Government William Yeomans. (Due to severe weather in the northeast, Congressman Chris Murphy of Connecticut was unable to attend.)

Lithwick and Yeomans took questions from the audience on the film, on questions of recusal surrounding the upcoming health-care case, and on why the issue of judicial ethics matters so much. Several attendees asked whether or not Congressional action on judicial ethics could raise serious separation of powers issues. Yeomans pointed out that the current recusal statute (which does apply to the Supreme Court, though individual justices are the sole determiners of whether or not it applies in each case) was established by Congress, and Lithwick pointed out that the justices could sidestep that point entirely by voluntarily adopting the same Code of Conduct that already applies to every other federal judge.

Alliance for Justice is leading an effort to reform the Court’s ethics rules. To learn more, watch A Question of Integrity online, or click here for more information on judicial ethics.



Premiere events in San Francisco and New York City will be held November and early December. To host a screening in your community, click here.

A Question of Integrity

Alliance for Justice is proud to release our latest short documentary film, A Question of Integrity: Politics, Ethics, and the Supreme Court.

A Question of Integrity examines growing concerns about ethically questionable and overtly political behavior by some Supreme Court justices and explores the need to apply the same ethical standards that govern every other judge in the federal court system to the nation’s highest court.

Watch now: