Page 6 - January February 24 Report

6
THE REPORT | January/February 2024 | CincyBar.org
Justice Thomas had, over a twenty year period, received undisclosed gifts from Harlan Crow, a conservative billionaire, that included private jet and yacht travel to a variety of destinations,6 (2) a report regarding the use of Court staff by Justice Sotomayor to further the marketing and sales of her memoir and children’s books, sales which are worth approximately $4 million since she joined the court in 2009,7 and (3) reports of the potential improper disclosure of a property sale worth roughly $2 million by Justice Gorsuch to a promi- nent law firm executive, whose firm often appeared before the Court.8
1. A Justice Should Uphold the Integrity and Independence 2. of the Judiciary.
A Justice Should Avoid Impropriety and the Appearance of Impropriety in All Activities.
These were certainly not the first times that concerns have been raised regarding the conduct of Supreme Court justices. Prior calls had been made for Justice Scalia to recuse himself from the Court’s consid- eration of a case in which Dick Cheney was a party, because of his close association with the former Vice President. Shortly before the oral argument, however, Justice Scalia filed a 21-page opinion in which he explained his reasons for refusing to recuse himself.9 Justice Kagan and Justice Thomas also were subject to calls for recusal in the Affordable Care Act cases because Justice Thomas’s wife had lobbied on behalf of parties in the case and because Justice Kagan had worked on parts of the legisla- tion when she was Solicitor General of the United States.10
Given these potential conflicts of interest and the criticism surrounding them, where were the justices to turn for guidance as to the proper ethical path? All other judges, federal and state, could turn to their respective Code of Judicial Conduct for guidance in navigating poten- tial conflicts of interest. However, it turns out the justices could turn only to them- selves, because the Supreme Court had no formal ethics code.
The 2011 Year-End Report on the Federal Judiciary presented by Chief Justice Roberts focused on the issue of judicial ethics.11 During the year leading up to the report, several of the justices had been criticized for alleged involvement in political fundraisers, acceptance of gifts and travel expenses paid for by groups with political viewpoints, and (perhaps most controversially) the refusal to recuse themselves from constitutional chal- lenges to the health care reform legislation
3.
A Justice May Engage in Extrajudicial Activities that are
4. 5.
A Justice Should Perform the Duties of Office Fairly, Impartially, and Diligently.
Consistent with the Obligations of the Judicial Office. A Justice Should Refrain from
Political Activity.
34
despite alleged conflicts of interest. In his report, Chief Justice Roberts acknowl- edged these accusations, as well as the existing legal framework that purport- edly covered some of the alleged conduct.12 However, the Chief Justice pointedly noted that the “Court has never addressed whether Congress may impose [ethical] requirements on the Supreme Court,” and pointed out that the constitutionality of the existing recusal statute has “never been tested.”13 The Chief Justice appeared to be telegraphing that he had grave doubts about the power of the Congress to impose enforceable ethics regulations on the Court. This same view was reflected in comments recently made by Justice Alito.14
The idea of a code of conduct for the judiciary can be traced to the 1789 Judi- ciary Act, wherein Congress adopted the official oath for all federal judges, including Supreme Court justices.15 Under the terms of the oath, judges and justices were required to pledge to “faith- fully and impartially” discharge the duties of the office.16 Following the Judi- ciary Act, Congress passed the first federal disqualification statute, 28 U.S.C. § 455, in 1792.17 This statute required a judge to “disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.”18 However, this disqualifi- cation statute applied only to lower federal judges, not the justices of the Supreme Court.19
Over the years, Congress repeatedly modified and broadened this disqualifica- tion statute, but its application remained limited to judges on the “inferior” courts. In 1948, Congress expanded the reach of this statute to include the justices of the Supreme Court.20 Today, three different statutes govern recusal of federal judges, but only one applies to Supreme Court justices.21 That statute, 28 USC 455, requires “[a]ny justice, judge, or magistrate judge of the United States” to “disqualify himself in any proceeding in which his impartiality might reasonably be ques- tioned,” as well as for other listed grounds, such as bias or prejudice, personal partic- ipation in the case, pecuniary interest, or a family connection to a lawyer or party to the case.22
In addition to recusal statutes, Congress adopted The Ethics in Govern- ment Act of 1978 and The Ethics Reform Act of 1989, both of which apply to the Supreme Court justices.23 The 1978 Act requires most high-level federal offi-