Watchdog Blog

Gilbert Cranberg: A Code of Conduct for the High Court

Posted at 10:42 am, February 18th, 2011
Gilbert Cranberg Mug

Common Cause has undertaken the monumental task of undoing the Supreme Court’s 5-4 decision in Citizens United vs. Federal Election Commission, the ruling that gives corporations and the wealthy unprecedented clout in U.S. elections.

The self-described people’s lobby is zeroing in on two high court justices in the majority, Antonin Scalia and Clarence Thomas, and asks the U.S. Department of Justice to investigate whether the pair “should have recused themselves from the Citizens United case.” If the department finds “sufficient grounds for disqualification of either justice,” Common Cause wants the Solicitor General to file a motion with the high court to vacate its judgment. The organization says the Justice Department has a stake in the issue because it represented the Federal Election Commission in the Citizens United litigation.

Common Cause complains that Scalia and Thomas “appear to have participated in political strategy sessions, perhaps while the case was pending, with corporate leaders whose political aims were advanced by the decision.“ Both justices attended closed door meetings sponsored by the super-wealthy Koch Brothers, David and Charles. In addition, Common Cause wants the Justice Department to examine the activities of Virginia Thomas, Justice Thomas‘s wife, to determine how she may have stood to profit from the Citizens United ruling.

It’s unimaginable that the Supreme Court would want to examine the conduct of colleagues and second-guess their recusal decisions. Besides, the court isn’t of one mind about when recusal is necessary. Justice William Rehnquist has written, “I have sensed that perhaps some members of the court would recuse themselves on pretty much the same set of facts that others would feel did not require recusal.“

Common Cause’s action, as futile as it probably is, underscores an unusual feature about the Supreme Court. As Northwestern University law professor Stephen Lubet has pointed out, “The U.S. Supreme Court is the only court in the country that is not governed by a written code of conduct.”

If it had a code, and it provided a way to address alleged ethical breaches without involving the court itself in the process, it would fill the void that now exists when questions are raised about the behavior of Supreme Court justices. Ideally, such a code would be administered by an independent body, such as the Judicial Conference of the U.S., composed primarily of senior circuit court judges.

The justices themselves should take the initiative to fill the void by setting the wheels in motion to create a code of conduct for the Supreme Court that had an appropriate enforcement mechanism.

The high court passes judgment on everyone else. Common Cause’s action makes this an opportune time for the high court to create a way for the justices themselves to be judged when credible questions are raised about their conduct.

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