The U.S. Supreme Court and Ethics
The Ethics Watch: Update
Here’s the latest on the ethics front. Justice Samuel Alito took a trip with a billionaire to go fishing in Alaska. No disclosures. Then, he ruled on a case that involved one of the billionaire’s entities, and claims he lacked knowledge about the connection.
Why I’m Writing
I write because, a few months ago, Justice Alito told the Wall Street Journal he thought lawyers should defend the Court, in the face of criticism about the justices’ ethics. I found the comment amusing for its suggestion that nine justices need the legal profession to validate their acts.
Now, with the speaker’s acts, it’s time to speak up. As some readers know, I work in the lawyer ethics space. I served as a volunteer in the lawyer regulation system for six years – effectively, I was an appellate judge – and have represented lawyers who face discipline for almost 30 years. I write, teach, and testify as an expert witness on ethics issues and the law of lawyering regularly. So, I am a bit more knowledgeable about these issues than are others, including most lawyers.
The Rules of Professional Conduct regulate lawyers. The Code of Judicial Conduct does the same for judges. Each state has its own version of each set of rules, but they resemble one another more than they differ. (The American Bar Association, which is a membership organization, created model versions of both documents. I participated in the redrafting of the Arizona RPC in 2001-3. More significantly, Mark Harrison, of blessed memory and a rock star in the lawyer ethics world, led the ABA rewrite of the Code of Judicial Conduct in 2010.)
Unfortunately, the U.S. Supreme Court exempts its nine justices from compliance with the Code of Judicial Conduct. The rationale? Mostly, no one can decide a case other than the nine of us, and if we must comply with the rules, we might not have enough people deciding our cases. Poppycock! (Erwin Chemerinsky, the extremely bright Boalt Hall Law School Dean, wrote Time Is Running Out for John Roberts and the Supreme Court for the New York Times several days ago. He explains this defense and other ones far better than I can.)
I know many judges. The ones I know mind the Code of Judicial Conduct. They recuse when they must and err on the side of stepping away. See, Rule 2.11. They avoid external influences and bristle when it looks like someone seeks favor by wrongful means. See, Rule 2.4. They keep their mouths shut about pending cases. See, Rule 2.10. And they don’t accept expensive gifts from people whose interests might be affected by their official activities. See, Rule 3.13.
The Court Deserves the Public Shaming
The gifts which Justices Alito and Thomas accepted reflect poorly on them and on the Court. That the 2014 recusal that never happened would not have changed the outcome of Paul Singer’s entity’s case against Argentina is irrelevant. What matters is the lack of care or concern for the appearance of independence. Justice Thomas’s silence and Justice Alito’s Big Eff You surprise me not at all. But their actions and reactions shame a great institution.
There’s more. The Chief Justice and Justice Neal Gorsuch deserve notice, too. The Chief’s wife makes millions serving as a recruiter for large law firms that actively practice before the Court. And Justice Gorsuch sold a piece of land to the senior partner of a law firm that has many cases before the Court, days after the Senate confirmed him. (Justice Gorsuch disclosed the land deal, but where the form asks for the name of the buyer – Duh! – he wrote ______.)
The justices believe, I’m sure, that gifts won’t buy their votes. They’re right, most likely. Each of the nine eight justices surprise us now and then – no, not you, Justice Alito – but most of the time we get what we expect. Those people who favor the justices with baubles will get what they want in any event. Regardless, the takers shame the place.
I wrote The Activist U.S. Supreme Court 357 days ago. Then, the Court had closed its 2021-22 Term with a slew of decisions that disregarded established precedents, the law, and common sense. Activism – whatever it takes to get to the desired outcome – drove the results on major cases. Still, what the majority did then pales when we compare it to the studied ignoring of basic principals of judicial ethics.
I cannot imagine good lawyers defending the Court right now. Actions have consequences. The Court deserves the public shaming.