Clarence Thomas. But to be fair, free trips and payments have been a problem for a very long time for the justices sitting on the Supreme Court of the United States. To no one’s surprise, Sheldon Whitehouse, who has made no secret of his deep desire to exert control over the co-equal branch of government now that it’s not his friend, seized the moment.
The revelations rankled some Democrats. On April 7, Sen. Sheldon Whitehouse, D-R.I., who chairs the Senate Judiciary Courts Subcommittee, tweeted, “As long as 9 justices are exempt from any process for enforcing basic ethics, public faith in SCOTUS will continue to decline.”
Not that Whitehouse hasn’t done everything in his power to diminish the legitimacy o the Supreme Court, but in this instance, he’s got a point. We expect Supreme Court justices to be as pure as Caesar’s wife. The argument about whether Justice Thomas made a mere oopsie or is dirty isn’t the point, because there’s nothing to be done about it. Sure, the other justices can pull an Abe Fortas and push him to resign, but it’s unlikely they will and unlikely he would resign anyway. The only way to remove Thomas from the Court is impeachment, and that didn’t work well with Samuel Chase and, given the partisanship in Congress, stands no chance of happening.
But why not a code of ethics?
The Judicial Conference, the policymaking body for federal courts, adopted the Code of Judicial Conduct in 1973. It asks judges to uphold canons regarding integrity and independence; avoiding impropriety; fairness and impartiality and extrajudicial activities. It also asks judges to refrain from political activity.
The code is intended as a guide; it doesn’t list penalties for breaches and says not every violation should lead to disciplinary action. Instead, it says disciplinary action should depend on the seriousness of the violation, the intent of the judge who committed it, whether it’s part of a pattern of behavior and whether it affects the judicial system.
As a salutary measure, it already exists, even if not applicable per se to the Supreme Court. It provides guidance and principles by which judges should conduct themselves.
Under rules in the Ethics Reform Act of 1989, which updated a law passed after the Watergate scandal, federal judges — including Supreme Court justices — must annually report all gifts worth more than $415, identify the source of the gifts and disclose travel locations, dates, and expenses for travel-related reimbursements. Judges also must reject gifts from people with business before the court.
This was modified by the Judicial Conference since, and should have included Thomas’ freebies from his “dear friend” Harlan Crow. But Thomas didn’t disclose. So what? The problem is that proposals to impose actual rules, for which there would be sanctions, would seek to put the Supreme Court justices under the auspices of the political branches, violating separation of powers. But even under the judicial branch, who has the authority to investigate, make findings and punish a Supreme Court justice? What court or body would it go before? Where would there be an appeal?
In February, Harvard Law School professor Noah Feldman asked in a Bloomberg News article whether such a code would subject the justices to problematic oversight.
“As a practical matter, a code might encourage politicized harassment of the justices without truly subjecting them to any real source of external authority,” Feldman wrote.
He added that a supervisory body could try to influence the outcome of Supreme Court cases and couldn’t remove justices from the bench. Only impeachment and conviction by the Senate could do that.
As wrong as Justice Thomas’ conduct may have been, even though he was hardly the first to enjoy perks of close friends, what can be done without undermining an array of tenets of our tripartite system of government and making the judiciary subservient to Congress?
*Tuesday Talk rules apply.
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