The death of Justice Antonin Scalia, during one of his many trips far from the capital and underwritten by outsiders, has revived some interest in Supreme Court ethics.
But as with so many of the issues Congress could decide to take on, only a relatively small number of lawmakers are talking seriously about legislation. And within that group, the Democrats and Republicans have totally different approaches for regulating the court’s behavioral standards. So the status quo is highly likely to hold fast this election year, and may well outlast a fight over filling the open seat on the court that’s looking likely to stretch into 2017. When Scalia died in February, he was on a hunting trip as the guest of Houston businessman John Poindexter, who owns a company that was the successful defendant in an age discrimination suit the high court decided against reopening just last year.
The free accommodations the justice received in West Texas may well have been permissible under federal ethics rules. But there is no formal avenue for challenging the propriety of the Supreme Court’s activities, because each of the nine justices is essentially the sole arbiter of his or her own conduct.
The fateful end to Scalia’s weekend at Poindexter’s smartly appointed hunting lodge was the only reason the excursion got noticed in the voluminous roster of all the justices’ privately funded travel. Scalia was apparently the biggest globetrotter, averaging two dozen trips a year, but the remaining members have made more than 1,000 forays around the world in the past decade for speeches, academic activities or panel discussions paid for by organizations that have often had rooting interests, at a minimum, in the proceedings of the court.
“What do we really know about the justices' activities? Are they getting trips and dinners paid for by political groups? The facts show us that they are. That shouldn’t be the case for the highest court in the land,” Rep. Louise M. Slaughter of upstate New York wrote in a Facebook post last week, seeking to drum up public support for her bill to create the first formal Supreme Court code of conduct.
Slaughter, one the House’s most senior members, has been pushing such legislation since 2009. She has 107 co-sponsors for the current version, including 11 members of the Judiciary Committee, but they’re all Democrats and there’s no chance the bill will get so much as a hearing until some Republicans sign on. The situation is much the same across the Capitol, where four from the Senate Judiciary panel are among the five Democrats who have signed on to a companion bill sponsored by Christopher S. Murphy of Connecticut.
Republicans, to this point, have almost totally resisted the idea that the court’s behavior needs to be regulated by law. Many members argue the rationale for such a bill has been concocted by liberals who want to exaggerate and then question the conduct of only the court’s most conservative members.
As a result, in the past four years Senate Judiciary Chairman Charles E. Grassley of Iowa has not found a single Republican colleague (or any Democrat) to endorse his alternative bill, which would create an inspector general with authority to investigate claims of misconduct at the Supreme Court or anywhere else in the federal judiciary. Rep. F. James Sensenbrenner of Wisconsin, a former GOP chairman of House Judiciary, got no traction for a similar bill in the past two Congresses and has not returned to the cause in this one.
The justices are required to comply with the Ethics in Government Act, which mostly relies on public disclosures to ward off behavior by executive or judicial branch officials that could create actual or perceptual conflicts of interest. (Members of Congress and their aides must live with different systems administered by the House and Senate ethics committees.) But the nine members of the Supreme Court are the only federal jurists who are not required to live up to the Code of Conduct for U.S. Judges, which sets guidelines for matters including recusals from cases and involvement in politics.
Chief Justice John G. Roberts Jr., in his annual reports to Congress on the state of the judiciary, has said that, while he and his colleagues generally abide by the code, their unique place atop the federal court hierarchy means they shouldn’t be obligated to comply.
Fix the Court, an advocacy group promoting formal ethics rules as one of six “good government” improvements for the court (televising oral arguments is another), maintains that while neither Scalia nor the eight remaining justices have done anything warranting removal from office, they are all “culpable of various ethical oversights, from leaving assets off their annual financial disclosure reports to speaking at partisan fundraisers to ruling on cases despite credible conflicts of interest,” mainly involving stock holdings in companies with stakes in an outcome.
The two most high-profile cases in recent years, however, both involved Scalia. In 2004, he flew on a government jet to go duck hunting as the guest of then-Vice President Dick Cheney, just before the court agreed to hear a challenge to the secrecy of a Cheney task force on energy policy. Scalia issued a 21-page defense of the arrangement in refusing to remove himself from the case.
Seven years later, he and Justice Clarence Thomas faced criticism for participating in the Citizens United case despite having been guests of conservatives and advocacy groups which promoted the sort of campaign finance deregulation the court ultimately ordered.
In the long run, the end of the Scalia era is more likely to minimize than to intensify the talk about intensifying the Supreme Court’s ethical code.
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