Note from Sarah Jane: I wrote and queued this post before Brett Kavanaugh was nominated to SCOTUS. Senator Warren’s call, and the bill drafted by Senators Blumenthal and Murphy are that much more needed now.

 

Support Massachusetts Senator Elizabeth Warren’s call to create a code of ethics for sitting members of the Supreme Court of the United States (SCOTUS).

 

It might surprise you to learn this, but the nine judges who serve the Supreme Court are not bound by an explicit, formal code of ethics.

 

As with so many other things in a small-d democratic government, norms prevail. It is simply assumed that Supreme Court judges would conduct themselves impeccably, and would not do anything that would make them look partisan.

 

Well, guess what? Not all of them do, and the problem predates the Trump administration.

 

The late justice Antonin Scalia attended political retreats run by the notorious right-wing donor Charles Koch. He dined and hunted with then-Vice President Dick Cheney and declined to recuse himself from a SCOTUS case that involved him. He accepted more sponsored trips than any of his contemporaries on the court, and when he passed away in 2016, he was found dead in bed at a Texas hunting lodge owned by someone who had recently been involved in a potential SCOTUS case.

 

Warren complained after Neil Gorsuch, the man Trump appointed to Scalia’s seat after the GOP schemed to prevent hearings on President Obama’s choice, Merrick Garland, spoke at a September 2017 lunch at a Trump-branded hotel that was sponsored by the Fund for American Studies, a conservative group.

 

Without an ethics code in place to guide him, Gorsuch was free to say yes, but it would have been smarter for him to decline. It had ‘bad optics’ written all over it.

 

The fact remains, however–judges on lower courts are bound by ethical codes, but SCOTUS members are not. The example of Scalia, a smart man who stupidly dismissed claims of conflict of interest in the case involving Cheney by saying, “I do not believe my impartiality can reasonably be questioned,” and “If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined.”

 

You can be the most principled, ethical person who ever walked the earth and if you enjoyed the extracurriculars that Scalia did, it’d still look hinky. Because dammit, they look hinky. Why even go there?

 

With Trump stampeding norms like they’re houses of cards and Jenga stacks, it’s probably time to spell out, explicitly, what so many other past and current SCOTUS members understand without needing explainer documents. It’s time for a SCOTUS code of conduct.

 

Back in April 2017, Senators Richard Blumenthal and Chris Murphy, along with House Rep Louise Slaughter, introduced the Supreme Court Ethics Act of 2017. If passed, it would address the problem. The bill is S. 835 in the Senate and H.R. 1960 in the house.

 

Sample script for your MoCs: “Dear (House Rep/Senator Lastname,) I am (Firstname Lastname, of town, state). I am calling to ask you to support Senator Elizabeth Warren’s call to create a formal code of ethics for sitting members of the Supreme Court of the United States (SCOTUS), and to ask you to support bills now in Congress that would create the code. Both bills are named the Supreme Court Ethics Act of 2017. In the Senate, the bill is S. 835, and in the house, it’s H.R. 1960.

We live in charged times, and Neil Gorsuch agreeing to speak to a conservative group at a Trump hotel property is the sort of thing he can do, but shouldn’t. His accepting the offer shows bad judgment on his part, and the last thing we want in a SCOTUS judge is bad judgment. Surprisingly, while members of lower courts are formally bound by a code of ethics, the nine who sit at SCOTUS are not. Given the off-duty adventures of the late Antonin Scalia and others, I think it’s time to support the creation of a set of binding guidelines that detail what SCOTUS members can and can’t do. It would improve the reputation of the court by giving it a means to show the public that it is fighting partisanship and the perception of partisanship. Thank you for listening.”

 

 

Read about Gorsuch’s speech, Senator Warren’s reaction, and calls to create an ethics code for sitting SCOTUS members:

http://thehill.com/regulation/court-battles/352920-gorsuch-speaks-at-trump-hotel-event-despite-criticism

http://thehill.com/homenews/senate/358163-warren-gorsuchs-links-to-koch-brothers-are-an-ethics-problem

https://www.politico.com/magazine/story/2017/11/01/supreme-court-ethics-problem-elizabeth-warren-opinion-215772

 

 

Visit the website of Fix the Court, a nonpartisan advocacy group that calls for ethics rules for SCOTUS:

https://fixthecourt.com

 

 

Like Fix the Court on Facebook:

https://www.facebook.com/FixTheCourt/

 

 

Follow it on Twitter:

@FixTheCourt

 

 

Donate to Fix the Court:

https://fixthecourt.com/donate/

 

 

See the GovTrack entries on The Supreme Court Ethics Act of 2017, both the Senate and the house versions:

https://www.govtrack.us/congress/bills/115/hr1960

https://www.govtrack.us/congress/bills/115/s835

 

 

Read about the late Antonin Scalia’s adventures away from the court, and his refusal to recuse himself in the Cheney case. In particular, see the 2016 New York Times article that included a sidebar that showed how often the nine justices travel:

http://www.cnn.com/2004/LAW/03/18/scalia.recusal/