If there's a perception that partisan politics has infected our federal judiciary, the problem begins at the top. Whether it is Justice Scalia's closed-door constitution "teach-in" for the congressional Tea Party Caucus, or the news that Virginia Lamp Thomas, the wife of Justice Clarence Thomas has now become a registered lobbyist for her Tea-Party inspired organization, questions are increasingly raised about whether the actions of some members of the high court are contributing to the perception that our federal courts have become increasingly partisan. Indeed the Thomas' activities have caused the greatest alarm. Last year Mrs. Thomas' created Liberty Central - a Tea-Party affiliated group for whom she raised large sums of money. And just recently it was revealed that Justice Thomas had failed for 13 years to comply with the obligation to provide information regarding his wife's income. Thomas is also under intense scrutiny by Common Cause, for his attendance at a conservative confab in Palm Springs sponsored by the Koch brothers, powerful wealthy conservatives who have funded--among other conservative causes--opposition to health care reform. Thomas' spokesperson first indicated that Thomas gave a talk and "dropped by" the event, but Thomas' disclosure forms from 2009 indicated a four-day stay at the meeting, and reimbursement by the conservative legal group the Federalist Society. The Thomas' seemingly can't be shamed, and Congress simply doesn't have the stomach for another confrontation with the combative and resilient duo, so it's unlikely that much will come of Common Cause's concern.
But the pressure is starting to build. Recently, over 100 law professors signed a letter asking that ethical standards covering federal judges be extended to cover Supreme Court justices as well. Congress got into the fray when over 70 Democrats signed a letter demanding that Justice Thomas recuse himself from cases involving challenges to the health care law because of the appearance of bias. Before this concerted action by concerned law professors, most commentators and legal scholars had soft-peddled concerns with the justices' forays into the political realm. Just last month Professor Noah Feldman in the Sunday New York Times suggested that concern with the appearance of impropriety in the justices' political activities is a tempest in a teapot. Supreme Court justices, he argues, have always been political. Feldman points out that the first Chief Justice, John Marshall, served as Secretary of State, while he was a member on the Court. But Feldman's comparison of 21st century Supreme Court ethical standards to the practices of justices nearly 200 years ago, or even in 1937 is unpersuasive. Arguing that the Courts have always been political is like excusing South Carolina congressman Joe Wilson, who shouted "you lie" at President Obama during a speech before Congress on the grounds that more than a century ago South Carolina congressmen were known to resort to caning their opponents on the Senate Floor. Just because it used to be worse doesn't mean it's not bad.
Justice Scalia's decision to engage in a closed-door constitutional seminar with the congressional Tea Party Caucus, cannot be likened to what Feldman deemed the political activity of several justices serving during World War II. And attending a weekend conference with conservative political benefactors, activists and lawyers can hardly be compared to serving as a prosecutor at the Nuremburg war tribunal trials (as Justice Robert Jackson did), or chairing the commission that investigated the attack on Pearl Harbor (as Justice Owen Roberts did). The latter two constitute public service engaged in on behalf of the entire country--not just in furtherance of the aims of one political party.
It's also not clear that our courts have always been as political as they are today. It's worth remembering that despite deep divisions among the Court's members, some of the Court's most controversial cases in the past were decided by unanimous opinion (think, Brown v. Board of Education, Cooper v. Aaron, U.S. v. Nixon, Clinton v. Jones). In those cases, the Court--although internally split--put the interests of the public and its own legitimacy ahead of the individual outcome desires of the justices. The turning point perhaps was Bush v. Gore - a universally derided political 5-4 decision, in which the justices in the 5 member majority could not even sublimate their ego enough to sign on to one opinion justifying the decision to stop the vote recount.
The Code of Judicial Conduct, which applies to all federal judges, was enacted in 1973. It's gone through several amendments. Its purpose is to promote both the fact and appearance of impartiality for our federal courts. Likewise, the federal statute which sets out when judges should recuse themselves from hearing cases was amended in 1974 to require that judges withdraw from a case in which their "impartiality might reasonably be questioned." Both the Code of Judicial Conduct and the federal recusal statute reflect the demands of due process, which guarantees every litigant the right to appear before an impartial tribunal. Requiring judges to withdraw from cases in which their impartiality might be questioned by a reasonable person, is designed to "promote confidence in the integrity of the judicial process."
This focus on the appearance of bias, rather than on actual bias, developed during the second half of the 20th century. In short, a seismic shift in our conception of impartiality and judicial ethics has taken place beginning in the early 1970s. As a result, even justices who came from strong ideological law practices (like Thurgood Marshall) or who were forceful partisans in the government (like Justice Rehnquist) were held to the expectation that they would be circumspect in their political activity once they ascended to the bench. At his confirmation hearings, Clarence Thomas insisted that he would "strip down like a runner" as a Supreme Court justice, and abandon the partisan advocacy he had undertaken as a member of the Reagan administration. Thomas offered this reassurance (dubious though it may have been), because he understood that even in 1991 we still expected our Supreme Court justices to adhere to the standard requiring the "appearance" of impartiality, whatever their ideological view. Now we're asked to shrug our shoulders and accept that "justices will be political" as fait accompli.
What has become increasingly clear is that too few legal ethicists are willing to acknowledge that the Supreme Court's leadership on this issue is necessary. The Court should promote greater transparency and stand united in adherence to the letter and spirit of the federal recusal statute which compels judges to be attentive to activities in which their impartiality might reasonably be questioned. A major overhaul of Supreme Court recusal practice is in order. The current practice is cloaked in secrecy and relies too heavily on an individual justice's discretion.
Chief Justice Roberts, as head of the Court could undertake a process of creating standards for the justices' political activity. It might mean that justices would be discouraged from showing up at both Federalist Society and American Civil Liberty Union conferences, but this seems a small price to pay for reasserting the importance of the appearance of impartiality on the Court. As Canon 2 of the Code of Judicial Conduct advises, "judges should accept freely and willingly restrictions that would be burdensome to the ordinary citizen." It was gratifying to see the Chief Justice at the State of the Union address this year (although the 3 most conservative justices were absent). If the justices must attend "political pep rallies," it's best when they do so in public and when their presence can demonstrate the unity of all three branches of our government, whatever our ideological differences.
Sherrilyn Ifill is a civil rights lawyer and law professor at the University of Maryland School of Law.
Suggested citation: Sherrilyn Ifill, Justices Shouldn't Play Politics, JURIST - Forum,
March 18, 2011, http://jurist.org/forum/2011/03/ifill-piece.php.