Justice Roberts is adamant that the justices can police themselves, in spite of evidence to the contrary. And,
“Without buy-in from Roberts, any attempt, even by Congress, to require the justices to give themselves a written code of ethics is probably a tough sell. The new bill, if it could even pass through the full Congress (also doubtful), could set off an epic separation of powers battle between the two branches of government.”
Liberals have pushed Justice Clarence Thomas to recuse himself from hearing the health care case, since his wife protested against the legislation and raised money to contest it.
Much of the Supreme Court’s caseload comes from:
- Challenges to federal statutes or
- Government policies that the solicitor general must defend
- And the court frequently seeks governmental discretion regarding whether a case is ready to be reviewed.
Given that there are only nine justices, when one of them recuses him or herself the result is an “evenly divided court” that will not “create a national precedent” and will not the “lower-court ruling in place.”
Both Thomas and Scalia have been criticized for their conservative Republican affiliations. They have attended multiple Republican donors events, many sponsored by the ever- present Koch brothers. For example there was the meeting at Palm Springs of “a secretive network of Republican donors”, organized by Koch Industries “longtime underwriter of libertarian causes.”
Professor of law at Northwestern University Steven Lubet teaches Legal Ethics courses and says,
“There is nothing to prevent Supreme Court justices from hanging out with people who have political philosophies.”
But the Koch event was not just a bunch of buddies hanging out. It was a “twice a year” political meeting “to review strategies for combating the multitude of public policies that threaten to destroy America as we know it.”
And we do not know what Thomas and Scalia did for Koch. Given the Kansas brothers’ history of intense “political involvement. Legal ethicists are urging for more disclosure.”
Law professor at New York University [NYU] Stephen Gillers said,
“This is certainly worth more reporting. It is intriguing because the Koch brothers are so politically active and identify with a point of view. I know I would be curious to know exactly what forums the Justices went to. Obviously they could not go to a strategy session about how to elect more Republicans. On the other hand if it was a forum on the meaning of the First Amendment and it didn’t involve strategy or fundraising a Justice could appear… It’s fascinating and it merits more reporting.”
Given that the Supreme Court, “handed down a major decision on campaign finance law that Koch Industries quickly utilized,” one wonders how the two conservative justices managed to stay objective,
“Citizens United overturned existing law by ruling that corporations could spend unlimited amounts of money on federal elections. Suggestions that Justices Scalia’s and Thomas’ support of Citizens United may have been affected by their time with Koch officials ignores the fact that nothing concrete is known about what meetings they attended and when.”
Judicial ethics professor at Samford University’s Cumberland School of Law, William G. Ross said,
“I think it is very important for judges to be part of the real world and to appear in public for educative purposes to help explain the arcane mysteries of the court to the general public. That is very healthy and I don’t think that judges should isolate themselves in a marble palace… However I am very troubled by the tendency of judges to make broader comments on public issues and to appear in public or private gatherings in which there are political overtones.”
On the very day that the Supreme Court would hear a challenge against the Affordable Care Act [ACA], Scalia and Thomas attended a dinner sponsored by the law firm that would be arguing the case. They decided to hear the case. The firm Bancroft PLLC, helped sponsor the Federalist Society’s annual dinner. The society is “a longstanding group dedicated to advocating conservative legal principles.” Another sponsor, Pfizer, Inc, “has an enormous financial stake in the outcome of the litigation.”
Justices Thomas and Scalia said in a statement that they had “each spoken at dinners at the Koch retreat and that the Federalist Society, a conservative legal group,” paid their expenses. So the rumors are true. Thomas can speak.
Although justices are exempt from the Code of Conduct, the code provides an interesting take of what is possible. The code’s Canon 4C states,
“A judge may attend fund-raising events of law-related and other organizations although the judge may not be a speaker, a guest of honor, or featured on the program of such an event."
Ethics-in-government activist and president of Common Cause Bob Edgar expressed concern that Scalia’s and Thomas’ were involved in the dinner,
“This stunning breach of ethics and indifference to the code belies claims by several justices that the court abides by the same rules that apply to all other federal judges. The justices were wining and dining at a black-tie fundraiser with attorneys who have pending cases before the court. Their appearance and assistance in fundraising for this event undercuts any claims of impartiality, and is unacceptable.”
But the deadly duo really doesn’t care what the critics say. After all they have job security until death pries them out of their black robes. That thought makes me wonder how they would handle a justice with dementia?
Justice Thomas should have recused himself from the Citizens United case on campaign finance after Thomas’s appearance at a “private political retreat organized by Charles Koch, the prominent conservative financier.”
Stanford University law professor Deborah L. Rhode specializes in judicial ethics. She said,
“The recent episodes could do some harm to Justice Thomas’s reputation. But it was unlikely to have any lasting impact on him or on the disclosure requirements that give justices wide leeway to decide whether they have a financial conflict in hearing a case.
“There’s no formal mechanism for review of conflicts among Supreme Court justices. Personally, I think issues like this are somewhat scandalous for the court, but from what we’ve seen when these issues have come up before, I don’t see that changing.”
Thomas voted against the Voting Rights Act and affirmative action when it came before the Supreme Court. His wife made a considerable amount of money challenging the Affordable Care Act while Thomas “was planning to rule on the health care law.”
Plus the Supreme Court still has the possibility of the marriage equality cases — pro-traditional families, election laws, abortion and NRA issues.”
And we cannot forget about these Justices’gifts.
“Leading conservative donor Harlan Crow, whose company often litigates in federal court, provided $500,000 to allow Thomas’s wife to start a Tea Party group and he once gave Thomas a $19,000 Bible that belonged to Frederick Douglass. The American Enterprise Institute, a conservative think tank which frequently files briefs in Thomas’ Court, also gave Thomas a $15,000 gift.”
One of Thomas’ buddies has even filed briefs in his Court.
Maybe Thomas took lessons from Justice Abe Fortas. The last-century justice hung around with the rich and famous. Fortas took gifts from them, wildly inappropriate gifts. And he took wildly inflated fees from American University to lead seminars, which corporations bankrolled, businesses that often appeared before the court, like Phillip Morris.
Then the Louis E. Wolfson’s foundation started shelling out a yearly retainer of $20,000 for Fortas’ consulting services. That would be $141,695 in today’s dollars.
Oh sure Fortas’ actions were legal, but he ended up resigning in disgrace. Of course Thomas is also hardly likely to do the honorable thing and recuse himself from the court.
Even ultra-conservative Justice Scalia finds Thomas’ too extreme,
“I am a textualist. I am an originalist. I am not a nut.”
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