February 15, 2011
Judges and Judiciary
A Supreme Court Above Reproach

by Erwin Chemerinsky 

Throughout history, one of the U.S. Supreme Court's greatest strengths and virtues has been the impeccable ethics of its justices. The Court has rarely been tainted by scandal. When there were allegations of improprieties by Justice Abe Fortas, he quickly resigned from the bench. Even rumors of ethical transgressions by justices are exceedingly rare.

In recent weeks, however, ethical concerns have been raised about some of the justices. Perhaps most significantly, it was revealed that Justice Clarence Thomas had not disclosed his wife's income for a number of years, even though this is required by law. On Jan. 24, Thomas said that this was inadvertent and based on his not reading the forms correctly. But year after year, he clearly represented on these forms that his wife had no income, when that was not at all the case. Also, concerns have been raised about his wife's political activities and who has been funding them.

A few weeks ago, Common Cause asked the U.S. Department of Justice to investigate whether Justice Antonin Scalia or Thomas acted improperly in participating in the Court's decision in Citizens United v. Federal Election Commission, 130 S.Ct. 676 (2010). The concern was their having spoken and received benefits from those who directly gained from the decision. There has been extensive publicity about these charges.

These allegations have significant costs because it is so important that the justices be beyond reproach. Codes of judicial ethics require that judges avoid even the appearance of impropriety. Nowhere is that more important than for the most visible court in the country - the U.S. Supreme Court.

Several steps should be taken to help insure that there is both the perception and reality of a Court complying with the highest possible ethical standards. First, the ethical standards, which are applied to lower federal court judges, should be applied to Supreme Court justices. With the exception of a few laws, those that regulate ethics for all other judges are not applicable to the Supreme Court. This should be changed immediately. There is no justification for this omission.

Second, no longer should it be left to each justice to decide for himself or herself whether to participate or be recused. If a party requests that a justice be disqualified, it is entirely up to the justice as to what to do. This came to national attention a few years ago when Scalia went hunting with Vice President Dick Cheney while Cheney had a case pending in the Supreme Court. A motion to recuse Scalia was made, but he refused to disqualify himself and declared that he could be sufficiently fair and impartial.

It should be axiomatic that a justice should not be ruling on his or her own disqualification. A simple alternative procedure would be to choose three other justices at random to rule on any motion that a justice be recused. Of course, there is the danger that the justices will simply defer to each other. But it is reasonable to assume that the justices will take this responsibility seriously and no matter what, it is better than the current approach to recusal.

Finally, if a justice is disqualified from a case, a procedure should be devised whereby a retiring justice, chosen at random, can participate at the Supreme Court instead. This year, for example, Justice Elena Kagan is recused from about one-third of the cases on the Court's docket because they were matters which were being handled in the Solicitor General's office when she was running the office. There is a real danger of 4-4 splits in a large number of cases this year, which means the lower court decision will be affirmed by an evenly decided court. This serves no one's interests. All of the time spent briefing and arguing the case is wasted. And the law remains unsettled until the Supreme Court can find another case posing the issue.

In many states, including California, if a state Supreme Court justice is recused, then a Court of Appeal justice fills in. Such a system could be adopted, by statute, at the federal level. An easy solution would be to allow a retired Supreme Court justice to participate. At this moment, there are three retired justices - Sandra Day O'Connor, David H. Souter, and John Paul Stevens. Both O'Connor and Souter continue to actively serve as judges, regularly sitting by designation on U.S. Courts of Appeals. If a justice is disqualified, then one of the retired justices should be chosen at random. The result is to ensure that there are always nine justices to hear every case. This also can lessen the pressure on justices to participate even when a conflict of interest, or the appearance of one, should cause them to withdraw. Sen. Patrick Leahy has introduced legislation to accomplish this and it should be adopted.

Courts throughout the world have been plagued at times with ethical improprieties by their judges. Sometimes this has been true in the state courts. But ethical concerns about Supreme Court justices have been rare. Now that such concerns have surfaced, steps must be taken to ensure adherence to the highest ethical standards in the most visible and the most important court in the country.

Erwin Chemerinsky is Dean and Distinguished Professor of Law at the University of California, Irvine, School of Law.