Gordon L. Weil
As a newspaper correspondent, I was once offered a free trip to write an article about an event at a distant location. The sponsors would pay for my travel and lodging. While I was confident I’d write an objective piece, it’s likely they expected a favorable report.
I asked my editor if I could accept the offer and produce an article for the paper. He promptly told me to turn it down, because I could not report on an event for which the sponsor had paid my expenses. I declined the invitation.
I could have refrained from asking for approval and kept the editor in the dark. I could have given him the impression that I had paid for my own travel expenses, perhaps while on vacation. The paper could have allowed me to go. In no case would the readers have known. The reason none of that happened was a matter of ethics.
The paper observes journalistic ethics and expected the same of me. It is not a government agency and its policies are not governed by law. But the editors want to preserve public confidence in its fairness and independence. They know that the newspaper has to keep the public’s trust and avoid endangering it in any way.
We are faced today with the same kind of problem with the U.S. Supreme Court. An unelected government body, it makes decisions that can affect everybody in the country. Yet it lacks any known ethical code. If it has an undisclosed code, enforcement or lack of it is left to the Court itself.
While Congress, the executive branch and all federal courts must meet ethical standards, the Supreme Court has no such requirement. In light of recent disclosures and a long-running effort by Sen. Sheldon Whitehouse (D-RI), Congress has begun to question whether there should be publicly announced Supreme Court standards.
The discussion has almost instantly become partisan, because issues have arisen concerning conservative justices, including Justice Clarence Thomas, who received large, undisclosed gifts, Chief Justice John Roberts and possibly others. Some Republican senators are reluctant to require a Court code, while Democrats seek some reform.
The situation reflects partisanship. Republican legislators may not want to question the ethics of justices whose decisions they like. Democrats may like challenging hostile justices. This focus is revealed in the low headlight beams of short-term party politics without turning on the high beams to see what would be good for the American political system.
Sen. Richard Durbin (D-IL), the Judiciary Committee chair, invited Roberts to discuss the Court’s substituting a mere declaration for a real ethics code. Roberts declined, based on concern about protecting judicial independence. He seemed to assert that it could not be held accountable by Congress. Checks and balances appear not to apply to the Court.
His attitude is consistent with the increasingly dominant role of the Court in the federal government. He resists the kind of congressional role contemplated by the Constitution and takes extreme advantage of the respectful reluctance of the Senate to avoid meddling in Court decisions.
Senators Angus King (I-ME), who aligns with the Democrats, and Lisa Murkowski (R-Alaska) jointly proposed legislation that would require the Court to adopt a public ethics code within a year. Congress would not set the code for the Court.
The Court would be required to appoint an independent official to investigate complaints and to issue an annual report. The Court would also be authorized to investigate ethical questions, a power that it probably believes it already has.
The investigator could become a magnet for complaints and an annual report might allow ethics violations to linger too long. And what would happen with the report once issued?
This good bipartisan effort could easily be improved without affecting the Court’s judicial powers. The Chief Justice could appoint a panel of federal judges to review complaints and make public its findings only if it uncovered possible violations. A similar confidential court to deal with national security issues already exists. Its members are appointed for fixed terms.
If this panel found an ethics violation, it would report to Congress. The House could then decide whether to impeach the justice. Federal judges (including one early Supreme Court justice) have been impeached and some have resigned before impeachment. Finally, the Senate may convict or acquit.
Checks and balances work because judges, members of Congress or presidents may be charged by the House and convicted by the Senate only after a trial. But the Supreme Court has chosen to be its own judge and has never in the 234 years of its existence disclosed a major violation of any confidential code of judicial ethics.
Roberts should not overly insulate the Court, one of the three equal branches of government, and let checks and balances work.
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