The Supreme Court Has an Ethics Problem

By Elizabeth Warren, Politico

05 November 17

Justices on the high court don’t have to follow the same code of conduct as they do in lower courts. That needs to change.

few days before the Supreme Court returned from its summer break, Justice Neil Gorsuch, the court’s newest member, attended a luncheon at the Trump International Hotel, where he was to give the keynote address. The location of the speech attracted the attention of dozens of protesters and a number of ethics watchdogs, who noted the apparent conflict of interest posed by Justice Gorsuch—a Trump nominee—keynoting an event at a hotel whose revenue goes in part to President Trump. That arrangement was bad enough on its own. But there was another potential conflict of interest created by Justice Gorsuch’s speaking engagement—and it highlights the ongoing ethical issues that threaten the credibility of our nation’s highest court.

The same morning that Justice Gorsuch gave his speech, the Supreme Court announced that it would hear Janus v. AFSCME. This is a case that will determine whether public sector unions—which represent teachers, nurses, firefighters and police in states and cities across the country—can collect fees from all employees in the workplaces they represent. Justice Gorsuch is widely expected to deliver the court’s deciding vote to strip unions of this ability. A decision along these lines would seriously undercut workers’ freedom to have a real voice to speak out and fight for higher wages, better benefits and improved working conditions.

Here’s the rub. Justice Gorsuch’s speech at the Trump hotel was hosted by the Fund for American Studies. And who funds the Fund of American Studies? The Charles Koch Foundation and the Bradley Foundation. The Charles Koch Foundation is dedicated to promoting limited government, free markets and weaker unions; and the Bradley Foundation has worked for decades to, in their own words, “reduce the size and power of public sector unions.” In fact, the Bradley Foundation helped pay the litigation expenses for Janus—the case in which Justice Gorsuch is likely to be the deciding vote. Think about that: Just as the ink was drying on the court’s announcement that it would hear Janus, Justice Gorsuch was off to hobnob with some of the biggest supporters for one side of this important case—the side that wants to deny workers the freedom to build a future that doesn’t hang by a thread at the whim of a few billionaires.

This isn’t the first time the Supreme Court has strayed over the ethical line. Take a look, for example, at ABC v. Aereo. The court concluded that Aereo, a small television streaming service, had violated the copyright of broadcasters by capturing signals from television stations and retransmitting programming from those stations to the company’s subscribers. Time Warner—one of the broadcasters who stood to lose if the court allowed the practice—filed a friend-of-the-court brief arguing that the court should side with the broadcaster. At the time, Chief Justice John Roberts owned as much as $500,000 in Time Warner stock. Despite this blatant conflict of interest, Roberts would not recuse himself from the case. Instead, he joined the majority in effectively killing the small streaming service.

There are plenty of other examples of ethical conflicts. According to Fix the Court, a nonpartisan group focused on increasing accountability and transparency on the Supreme Court, Justices Roberts, Stephen Breyer and Samuel Alito owned shares in 53 publicly traded companies as of 2016.

The Code of Conduct for United States Judges requires judges to recuse themselves when certain potential conflicts arise, such as in cases in which the judge, the judge’s spouse or the judge’s minor children have a financial interest or in cases in which the judge has a “personal bias or prejudice” against or for any party in the case. But those rules don’t apply to Supreme Court justices.

In fact, Supreme Court justices are the only federal judges who are not bound by a formal code of conduct. The reason, as explained by Chief Justice Roberts, is that the Supreme Court is the only court created under Article III of the Constitution, while the lower courts are created by Congress. For Chief Justice Roberts, it’s sufficient that the justices consult the code when determining their ethical duties and voluntarily abide by rules on a case-by-case basis.
The chief justice’s argument is exactly backward. When an ethical cloud hangs over the court, its fundamental integrity is compromised. At a time when Gallup polls have found that fewer than half of Americans approve of the way the court is handling its job, the justices ought to be making every effort to show that their personal integrity is above reproach.

It is time to begin rebuilding American’s confidence in the court by establishing a formal code of conduct. That’s why I co-sponsored Sen. Chris Murphy’s Supreme Court Ethics Act, a bill that requires the Supreme Court to adopt an ethical code. As the nation’s highest court, the Supreme Court has an even greater duty to set the example for courts around the country and demonstrate that its decisions are based on a fair and unbiased assessment of the facts and the law, not personal biases or their own financial interests. Eliminating ethical questions and conflicts of interests should be the starting point.

Federal judges are not supposed to be politicians or advocates. They are supposed to rise above the political winds of the day and demonstrate a single-minded commitment to one promise: equal justice under law. As judges of the nation’s highest court, it is time for Supreme Court justices to demonstrate that they can meet that standard.