Common Cause Letters
The Honorable John Roberts
United States Supreme Court
1 First Street Northeast
May 9, 2011
Dear Chief Justice Roberts:
I am writing on behalf of Common Cause to seek your help in clarifying the applicability of the Code of Conduct for Federal Judges to the U.S. Supreme Court, and how the Court holds justices accountable to its ethical standards.
Public confidence in the Supreme Court and in the fair administration of justice is vital to our democracy, and the best way to bolster that confidence is to ensure that the highest court is committed to maintaining the highest standards for integrity and impartiality. Unfortunately, the attendance of several justices at politically charged events, as well as a few high-profile controversies concerning the appearance of bias, have called that commitment into question in recent years. The widespread perception, held by the Judicial Conference of the United States, other legal experts, the media and opinion leaders alike, is that the Code of Conduct that every other federal judge lives by is not binding on the Supreme Court. Indeed, the introduction to the Code states that it “applies to United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges" but does not mention the Supreme Court.
Against that backdrop, we paid close attention to statements by Justices Kennedy and Breyer when they fielded questions about the Code and its applicability to the Court during an appearance before the House Appropriations Financial Services Subcommittee on April 14, 2011. Both justices declared that the Court has agreed internally to be bound by the Code, and that they believe its canons are currently being followed by their colleagues.
“The code of conduct does apply to the justices in the sense that we have agreed to be bound by them. Those rules are public and if there is some question that we haven’t complied with the letter or spirit of those rules, there can be comment about that. Of course the court has to follow rules of judicial ethics. That’s part of our oath, that’s part of our obligation of neutrality.” – Justice Anthony Kennedy
“ I think all the judges do what I do, which is we do follow the rules. They do apply. And somehow it’s gotten around (that) they don’t. Well, they do. I apply them.”—Justice Stephen Breyer
While these comments were most welcome, they require further clarification. A May 3 letter signed by Kevin Cline, the Court’s Budget Manager, significantly diverges from Justice Kennedy’s testimony that the Court has agreed “by resolution” to be bound by the Code. Mr. Cline indicated that the Court considers the Code “principally advisory in nature, even for lower court judges.” He also suggested that the resolution referred to by Justice Kennedy deals with the Court’s compliance with Judicial Conference regulations on gifts, outside earned income, honoraria and outside employment, rather than with the Code. We urge that you resolve these discrepencies by releasing the text of the resolution, the date of its adoption and the vote by which it was adopted, if one was taken.
If Mr. Cline’s description of the resolution and of the Court’s view on the applicability of the Code is accurate, we urge the Court to adopt and publicize a new resolution, fully embracing the Code and establishing mechanisms for its enforcement on all the justices. We suggest the resolution provide for a formal process by which the Court can advise individual justices on issues concerning real and potential conflicts of interest, recusals, personal financial disclosures and other ethical matters. We also urge that it provide for the public release of regular reports by the Court on its compliance with the Code.
Our concerns on these subjects are driven by activities of some members of the Court that appear to be at odds with Canons 4 and 5 of the Code of Conduct. Canon 4 prohibits a judge from personally participating in fundraising activities, and Canon 5 explicitly prohibits making “speeches for a political organization” or engaging “in any other political activity.” We call your attention to the following instances in which justices have attended fundraising events and appear to have engaged in political activity:
If the Court has not already adopted a resolution embracing the Code of Conduct for United States Judges, we urge you to do so now. The interest of justice demands that the Court go the extra mile to assure lawyers, litigants and the general public that the justices hold themselves to the same ethical standards as every other federal judge, and to explain how those standards are enforced. Because of the Court’s unique place in our system of government, the oversight that might otherwise be provided by the Judicial Conference or committees of Congress is limited.
We hope you and your colleagues will take these important steps.
President and CEO
Excerpts of testimony before the House Appropriations Financial Services Subcommittee on April 14, 2011.
http://appropriations.house.gov/index.cfm?FuseAction=Hearings.Detail&HearingId=41&Month=4&Year=2011 (beginning at 25:46 into the hearing)
Congressman Serrano (D-NY): “Recently there have been several proposals to apply Judicial Conference’s judicial codes of conduct to Supreme Court justices, and to make recusal decisions by the justices more transparent to the public. Currently the code of judicial conduct applies to all other Supreme Court Justices, but is only advisory for Supreme Court Justices. Do you have any thoughts on these proposals? Do you believe that the Code of Judicial Conduct should apply to Supreme Court justices? Or are there good reasons for not doing so?”
Justice Kennedy: “Let my colleague Justice Breyer comment on my answer and add his own insights. The code of conduct does apply to the judges in the sense that we have agreed to be bound by them. Those rules are public and if there is some question that we haven’t complied with the letter or spirit of those rules, there can be comment about that. Of course the court has to follow rules of judicial ethics. That’s part of our oath, that’s part of our obligation of neutrality. And so far as making them binding, there’s a legal, or constitutional dissidence or problem. Those rules are made by the Judicial Conference of the United States, which are district and appellate judges. And we would find it structurally unprecedented, for district and circuit judges to make rules that Supreme Court judges have to follow. There’s a legal problem in doing that. I really think there is no problem at all in since by resolution we have agreed to be bound by those. We’re also of course bound by the ethics in government statutes for conflicts of interest and so forth.”
Justice Breyer: “The answer to your question -- should the Judges be bound to the same rules of ethics -- I think is yes. To ask a different question -- does that mean you should legislate? There I think the answer is no. And the reason that I get to the two different answers, is because I personally have seven volumes of ethics rules, the same that every district judge has, right in my office, and when I find a difficult question, I go to those volumes, and try to apply them as a district judge would. And I have people whom I call who are ethics experts really if I find a difficult problem. Well, say “why not legislate?”
The only reason not to legislate, I suppose, is one the kind of theoretical -- get into a problem with can you legislate and where on the Supreme Court – which people love to debate, and I love when they have such a question comes “where does the power lie” not to answer the question and go onto something else, because I think it produces heat and not too much light. (sic)
The other reason I think perhaps never happens anymore, but when I worked on the staff of the Senate sometimes a bill which we thought was perfect would get to the floor of the Senate and the words that came out didn’t seem to be quite the same words that went in. So I didn’t know always what was going to happen when legislation started. But those are rather detailed technical, and they are not real objections. Your basic question is right and I think it’s followed, I think all the judges do what I do, which is we do follow the rules. They do apply. And somehow it’s gotten around (that) they don’t, well they do. I apply them.
And I’d add one other thing. It’s a different thing, which I discovered, being a Supreme Court justice in respect to ethics and disqualification than a District Court or Court of Appeals. When I was on a Court of Appeals, or District Court, and a tough question came up, I’d say I’ll take myself out of the case. Who cares? They’ll find somebody else. But you can’t do that on our court. So you have to think about in a different way and you have to remember you also have a duty to sit. Because there’s no one to replace me if I take myself out. And that could sometimes change the result. So I have to think long and hard, in a way that I didn’t have to think long and hard on the Court of Appeals."
Justice Kennedy: “If I may just add: As Justice Breyer indicates if we had one of us recuse from a case and we come out 4 to 4 we wasted everyone’s time. It could be a criminal conviction automatically affirmed. And so we do have special…(inaudible) We have in the Judicial Conference of the United States, the Committee on the Codes of Judicial Conduct. And I served – I think there were five us of who served on that committee for more years than I would like to remember. That committee is a very hard working committee. It gets requests from judges, setting forth what the ethical problem is: the judge is in mid-trial, he or she’s invested years and years of time, and suddenly there is a marriage in the family and there is a conflict of interest because the new spouse owns some stock. Does that judge have to leave after investing years in the litigation? Those are the kind of things we try to answer. And the committee is open and receives questions from us. We can ask for advice from the Committee on the Codes of Judicial Conduct. And we do ask for that advice.
Congressman Serrano:.Madame chair, let me just close by saying that I would accept both of your statements that you’re very careful and the court is very careful in how it deals with these things. So I guess the next question for yourselves – not for me to ask – is why are there now proposals floating around? What has happened recently that had had people ask these questions like they’ve never asked before?
Justice Breyer: One thing I think (and) this is just a guess is that somehow people got the idea that we don’t apply these same seven volumes. That’s just a wrong idea. And I think that came from the fact they’re not legally binding on us in the sense that they might be on a court of appeals judge. And that was interpreted to mean that we don’t apply them, which is wrong. And then that was written about in the newspaper and everybody thought that was so. But I think that’s what happened, and I suppose also always -- not always, almost always – there’s some controversial thing going on. And the reason that it’s more controversial in our court is: one, we’re more visible and two, we do have this duty to sit, which can make the question of answering an ethics question more controversial. So I think those two things combine. That’s just my guess as to why this is happening.