Opinion: The Supreme Court can’t afford to sustain another self-inflicted wound

Why don’t the Supreme Court justices understand that that they would benefit greatly from an ethics code and an independent office to assess their ethical issues?

Erwin Chemerinsky - U.C. Irvine

The most recent controversy involves Justice Samuel Alito, who acknowledged attending a luxury fishing trip on the private jet of a conservative hedge fund manager, Paul Singer, in 2008.  According to a ProPublica report, Alito did not include the trip or the flight on his annual financial disclosure, and did not recuse himself from a Supreme Court case involving Singer’s hedge fund.

Alito, who denies any wrongdoing, wrote an op-ed in the Wall Street Journal making the case that he did not need to recuse himself or disclose the trip. He wrote that he was “not aware and had no good reason to be aware that Mr. Singer had an interest in any party.” And citing a statement on ethics, principles and practices that defines “an appearance of impropriety,” Alito wrote that “no such person would think that my relationship with Mr. Singer meets that standard.”

I think Alito misjudges how people might view this situation. Justices are to avoid even the appearance of impropriety and that is violated when they accept gifts and then participate in cases involving those who bestowed them. That a justice believes that he or she can remain fair and impartial just isn’t a convincing enough defense.

More importantly, I think that Alito is missing a crucial point: the legitimacy of the Supreme Court is being undermined by a string of reports about various justices that raise concerns about transparency and ethics and it is ultimately in the justices’ own interests to create a clear and standardized path forward to avoid further controversy.

As I and many others have argued, the solution is to apply a code of ethics to Supreme Court justices, just as exists for state and federal judges. It makes no sense that the most important and powerful judges in the nation are not held to the same standards that other judges are.

In addition to a code of ethics, the justices would benefit greatly from an ethics office in the Supreme Court and a process for determining recusals. As things stand, it is left to each individual justice to decide whether there is an ethics problem and whether to be disqualified from a particular case. (While there is a law regarding recusals in certain circumstances, it is not applied as strictly to Supreme Court justices, who cannot be replaced like lower court judges.)

That is a process that is inherently suspect and will not win public confidence. No person should be a judge of him or herself.  And it makes no sense that the decision of whether a conflict of interest requires a recusal is left to the sole discretion of the justice.

If there had been an ethics office and it had approved Alito’s participation in Singer’s case, then Alito could point to that independent assessment as justification for his involvement.  It would not simply come down to Alito’s own statements that he did nothing wrong — an ethics office would provide far more credibility if it reviewed and validated that decision. Conversely, if the ethics office found a conflict of interest, the justice would be recused and the controversy avoided altogether.

There are many ways to establish a process of determining whether a judge should be recused. One possibility that has been suggested is to have a panel of retired federal court of appeals judges, selected by the Chief Justice, to make these determinations.  Or the Court could have the other justices decide a recusal motion, though that would risk the perception that they were protecting each other.

The lack of an ethics code is a self-inflicted wound by the justices. At a time when the Court’s public confidence ratings are the lowest that they have been in at least five decades, it is inexplicable why the justices don’t adopt an ethics code. It is not difficult; it could be based on the American Bar Association’s Code of Judicial Conduct, which is the basis for judicial ethics throughout the country.

Apparently, the justices don’t realize how much their legitimacy suffers when reports regarding their independence and ethics surface. At the same time, it doesn’t seem as if they recognize how much they actually would benefit from a clear ethics code and an independent body to assess these issues. If they did, the Supreme Court would already have measures in place and Alito wouldn’t be defending himself in an op-ed.

Ultimately, their failure to realize this harms the institution they serve and their reputations. It may also lead to Congress imposing an ethics code upon them, which is essential if the justices don’t act on their own.

The ethics of Supreme Court justices have been above reproach throughout most of American history. The revelations concerning Samuel Alito and other justices are serious and damaging to them and the Court at this critical moment, when the rule of law and our democratic institutions are already under pressure and public trust is at historic lows.

All justices and judges should be held to the highest ethical standards. It is time for the justices themselves to see this.

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