As the Supreme Court begins hearing cases for its 2011-12 term this week, two of its members will cross the street for a different sort of hearing -- in a Senate office building -- that could rekindle a much-needed debate over the court's ethical standards and their enforcement.
Associate Justices Stephen Breyer and Antonin Scalia, the intellectual leaders of the court's liberal and conservative wings, have accepted an invitation to testify Wednesday afternoon at a Senate Judiciary Committee session on "the Role of Judges Under the Constitution." The unusual hearing gives senators a chance to explore the court's apparent refusal to embrace the Code of Conduct for U.S. Judges, a set of ethical standards imposed on every other member of the federal judiciary, but not on the Supreme Court.
Ponder that for a minute. You'd think our laws would set the highest ethical standards for our highest court. If fact, there are no standards at all, or at least none that are binding. Americans like to think that no man, or woman, is above the law, but we seem to have allowed the court to rise to just that position.
Senators should ask how Justices Breyer and Scalia and other members of the court deal with ethical questions. We've been told they're guided by the Code, but do they seek advice from their colleagues, individually or as a group, in applying it? Is there a procedure for the full court or part of the court to review questions about an individual justice's compliance with the Code, about whether a justice has a conflict of interests that should disqualify him or her from participating in a particular case? If not, why not? Does the court have a mechanism to counsel or sanction a justice who violates the Code?
Common Cause started exploring these issues last fall, when we learned that two members of the court, Justices Scalia and Clarence Thomas, apparently have attended partisan political strategy and fundraising sessions organized by industrialists Charles and David Koch. The Code warns judges to stay away from political gatherings and to avoid "any other political activity."
Justices Breyer and Anthony Kennedy assured a House committee last spring that they and their colleagues follow the Code voluntarily and have agreed as a group to do so. "That's part of our oath, that's part of our obligation of neutrality," Justice Kennedy said.
Neither justice provided any detail on how the Court administers the Code however, and in a letter sent to members of Congress after the hearing a court official wrote that the justices consider the Code "principally advisory in nature." Meanwhile, on Capitol Hill, a House bill to extend the Code to the Supreme Court is stalled in committee.
America's highest court is the envy of the world. Millions of our citizens may disagree with its rulings on occasion but our respect for the court and the rule of law is so strong that support for enforcement of even the most unpopular rulings is almost unanimous.
That respect is not automatic however. The best way to maintain and strengthen it is to ensure that our judges are applying the laws and our Constitution without fear or favor, that they are living by the rules. The court's public embrace of the Code, along with its announcement of a mechanism for enforcing it, would be a big step in that direction.
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