It's Time for High Standards at the High Court

07/08/2011 04:05 pm ET | Updated Sep 07, 2011

If reporters found evidence that President Obama had slipped out of the White House for a weekend trip with a wealthy, politically active businessman and then failed to report it or reported it inaccurately on his annual financial disclosure forms, the howls of his political opponents -- and Washington's press corps -- would be heard coast-to-coast.

If House Speaker John Boehner was hitting up a rich friend for six- and seven-figure donations to a charity in Boehner's Cincinnati neighborhood, at the same time that friend had business before the House, Boehner's political opponents would be banging on the doors of the Ethics Committee to demand an investigation.

That's the way our system is supposed to operate. The political parties keep an eye on one another and journalists watch them both. The Congress blows a whistle when the executive oversteps his authority; the president speaks up when the legislative branch runs amok.
It's messy, but it works.

Except at the Supreme Court.

Without anyone paying much attention, our nation's highest court has moved beyond the kind of scrutiny Americans give the rest of our government. The Code of Conduct for U.S. Judges, a written set of ethical rules for the rest of the federal judiciary, pointedly omits the highest court; unless he or she engages in egregious, public misconduct, each justice is answerable only to himself or herself.

That's just wrong.

Since late last year, when Common Cause learned that Justices Antonin Scalia and Clarence Thomas may have been "featured" at secretive political strategy and fundraising seminars hosted by a multi-billion dollar corporation, Koch Industries, we've waged a campaign to hold the highest court to the highest standards.

The court has not exactly welcomed the attention.

Justices Scalia and Thomas have ignored requests for information about their association with the Koch events. Justice Thomas has not responded to questions about his role in raising money for a museum in his hometown and his apparent but unreported or incompletely reported travels aboard a developer's private jet. And Chief Justice John Roberts has ignored queries about how the Court views and/or enforces the judicial Code of Conduct.

Congress and the executive branch have shown little interest in policing the court. The Justice Department never answered a suggestion that it investigate whether Scalia and Thomas should have disqualified themselves from participation in Citizens United, a major campaign finance case decided in a way that benefited the Kochs. And on Capitol Hill, a bill to bring the Court under the judicial Code of Conduct has yet to receive even a committee hearing.

Regardless, Common Cause today broadened its campaign on two fronts.

First, we filed a Freedom of Information Act request with the US Marshals Service, which typically provides protection to the justices when they leave Washington. We're trying to determine whether Justice Thomas traveled on a plane owned by developer and political activist Harlan Crow on seven occasions over the past four years, and if so, whether those trips were properly disclosed. The New York Times raised questions about three of the trips, while a Common Cause review of flight records found four additional trips made by Crow's jet that followed a similar pattern of travel from Dallas to Washington and on to Savannah, Ga., Thomas' hometown. Federal law requires all federal officials to disclose who pays for their travel.

We've also appealed for help from the nation's largest lawyers, a group with a direct interest in maintaining high ethical standards throughout the legal profession. We've sent a letter to the president of the American Bar Association, urging him to press Roberts and Thomas for answers to questions about the latter justice's travels on Crow's jet and to call on the Court to bring itself voluntarily under the Code of Conduct.

These are achievable steps to bring to the court the same kind of accountability Americans expect of our other governmental institutions. They are unrelated to any pending case or past decision and no threat to judicial independence. They simply seek to ensure that those who enforce legal standards for the rest of us also observe those standards themselves.