Is the Supreme Court Above the Law?

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  • Dale Eisman

WASHINGTON, D.C. — Common Cause urged the nation’s top jurist today to ensure that justices of the Supreme Court are meeting the same ethical standards imposed on other members of the federal judiciary.

Continuing efforts to highlight concerns about partisan political activities and conflict of interest questions involving several justices, the nonpartisan government watchdog asked Chief Justice John Roberts to resolve apparent conflicts in recent statements from the Court about the application of the Code of Conduct for U.S. Judges on its members.

“The Court has sent confusing, apparently conflicting signals recently on its commitment to holding its members to the highest ethical standards,” said Bob Edgar, president and CEO of the nonpartisan government watchdog group. “We think the justices should pledge themselves to live by the same rules that apply to lower court judges and publicize their efforts to enforce those rules.”

In a letter to Roberts, Edgar noted that Justices Anthony Kennedy and Stephen Breyer told a House subcommittee last month that the Court has agreed voluntarily to be bound by the Code and its Canons of Ethics. [1]

But after Common Cause sought copies of a resolution Kennedy testified that the Court had adopted on the subject, a court official sent the subcommittee a letter advising that the Court considers the Code “principally advisory in nature, even for lower court judges.”

Edgar noted that the Code, adopted and distributed to all federal judges by the Judicial Conference of the United States, says it is to be applied to “circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges.” There is no mention of the Supreme Court and no suggestion that the Code is only advisory.

“The adoption and enforcement of high ethical standards is critically important to public confidence in the administration of justice,” Edgar said. That confidence has been undermined of late by the actions of several justices.”

The letter called Roberts’ attention to several justices’ participation in fundraising events and apparent political activity banned by the Code:

Justice Samuel Alito attended annual fundraising galas for the American Spectator magazine in 2008 and 2010. Tickets for the events sold for $250 to $25,000.[2]

Justice Clarence Thomas was the headline speaker at the Manhattan Institute’s Wriston Lecture in October, 2008. This event reportedly required a minimum $5,000 donation to the Manhattan Institute.[3] Justice Alito headlined the same event in 2010.[4]

Justice Alito headlined the Intercollegiate Studies Institute (ISI) fundraiser in April 2009, dubbed the ‘Annual Dinner for Western Civilization.’ This event reportedly raised $70,000 for the ISI.[5]

Justice Scalia and Justice Thomas were “featured” at strategy and fundraising retreats organized by industrialists David and Charles Koch in January 2007 and January 2008 respectively. These events are highly political, and attended by an elite group of Republican donors and officials, conservative leaders, and captains of finance and industry. While the attendance lists, agendas, and other details of these events are closely guarded, it is known that the Koch brothers use these events to raise funds for their wide-ranging political activities. At the January 2011 Koch event in Rancho Mirage, California, $49 million was reportedly raised to be used in the 2012 election cycle.[6]

Common Cause is a nonpartisan, grassroots organization dedicated to restoring the core values of American democracy, reinventing an open, honest, and accountable government that works for the public interest, and empowering ordinary people to make their voices heard.