INTERVIEW: Judging the Judges

By Reuvain Borchardt

The U.S. Supreme Court building. (Reuvain Borchardt/Hamodia)

Constitutional law scholar Seth Barrett Tillman discusses the Supreme Court Ethics and Investigations Act, a bill proposed earlier this month by House Democrats.

The bill would establish an Office of Ethics Counsel in the Supreme Court that would advise justices and their spouses on ethical issues, including disclosure requirements and recusals. The bill would also establish an Office of Investigative Counsel, which would investigate congressional complaints of alleged ethical improprieties in the Court, and report to Congress on its findings.

Tillman, who now teaches at Maynooth University School of Law and Criminology in Ireland, previously taught constitutional law at Rutgers Law School. He earned his BA from the University of Chicago and his JD from Harvard Law School. He held several federal clerkships, including one on the Third Circuit Court of Appeals.

There are statutes that apply to the Supreme Court justices, and if they violate those statutes, or other well-regarded, well-known norms of being a Justice on the Supreme Court, there is impeachment from Congress. But there is no one who directly supervises them in the ordinary course of business, just as there is no one who, in the ordinary course of business, directs the president or vice president or members of Congress. Usually, people who are at the apex of a political institution are not supervised. 

That is what we mean by saying it is the apex. The apex of the judiciary is the Supreme Court of the United States, so there is no one to supervise them in the ordinary course of business. 

If you were to create an ethics office that has actual control of who could sit on a Supreme Court decision, then, at that point, the ethics office really becomes the Supreme Court. Anyone in the role of supervisory authority is the real decision-maker. That would mean that you are basically replacing the Supreme Court with a new institution, and then that only one-ups the game. Now, you have got to ask yourself, who is going to supervise the supervisors? And then supervisors for them? It is an endless cycle. 

The point is: At the apex of all our most important political institutions, we rely on things like norms, and impeachment when those norms are violated. 

Prof. Seth Barrett Tillman outside the Supreme Court. (Reuvain Borchardt/Hamodia)

If you want to have a set of lawyers to talk about some issues with the Supreme Court justices, I do not think that is problematic — but I do not think it is going to be very useful, either. The Supreme Court justices know the ethics rules. Many were former lower court judges and the federal Code of Judicial Conduct applied to them. Providing the justices with someone to talk to and giving those persons an advisory role is not going to be very helpful — the justices will not speak with them anyway, and if the justices do need to speak with them, it probably means the justices are getting too old, or they should not have been on the Court in the first place. 

If the justices abuse their authority, there is impeachment for that. And that is also why we have academic writing and journalism. But the idea that you are going to solve this problem by creating a new group of ethics officers to monitor the justices — it is just going to be a new form of political control. And the new positions you create will be less transparent and less monitored than the ones you have now, because they will not formally be the people in charge — though in actuality, they will very quickly become the people in charge.

Yes, they certainly do. But that is usually because they are responsible for spending government money.

The Supreme Court is subject to various statutes, which are supposed to control conflict situations. And as far as the federal Code of Judicial Conduct, it applies to federal judges, but not those on the Supreme Court. Why? Because those rules in the federal Code of Judicial Conduct are supposed to be monitored and enforced by a judicial council. And you cannot put the Supreme Court under a judicial council and still have it be a supreme court. 

The reason people are talking about this issue now is not because of a particular interest in ethics. It’s because there are some people who feel they do not have a majority of the Supreme Court. So anything they could do to undermine its power and prestige, they want to do, in the hope that they will have control of the new institution that will supervise the Supreme Court.

It depends what powers that ethics office has. If it is just a new set of lawyers who will give confidential advice at the request of individual justices, it is not harmful at all; it might even be kind of positive. 

But if it’s the first step to putting supervisors in charge of the Supreme Court and telling them what to do, how to act, and then overriding their ability to participate on decisions where the justices don’t feel they ought to be recused, then, yes, I think that would be a problem. 

I did not say that; I said it would certainly be problematic. No one has tried to do this yet. But I could certainly see a very plausible argument that it would be unconstitutional.

Anyway, I never thought there was a lot to this other than this is an attempt at politics by other means.

If the people who were objecting to Alito’s wife’s flag really believed there was an ethical violation here, then they should be talking about impeachment. 

The fact that they do not, means this is just the creation of headlines to keep people in the news, who want to show that they are being vigorous in their use of elected office — particularly congressmen who want to move on to the Senate.

In almost all cases, where people bring up so-called ethical violations, there is really no merit to it at all. 

Are there cases where there are ethical violations? Of course there are. But all too often, the so-called solutions simply create new problems. And sometimes those problems are worse. 

Liberals have called for the recusal of conservative Supreme Court justices Clarence Thomas (L) and Samuel Alito from some political cases over their wives political activities. (AP Photo/J. Scott Applewhite)

If it is as little as it describes, yes, it probably would pass constitutional muster. On the other hand, if this is really the first step to creating permanent officials who will tell Supreme Court justices what cases they are allowed to participate in, and the minute the investigation has been opened, on the basis of how little evidence we do not know, the judge is recused from all actions because of some alleged ethical impropriety, then we are not going to have a functional court system. 

And many allegations are just false. For example, Chief Judge William Pryor of the Eleventh Circuit just ruled, in a motion before his court, that hundreds of people are basically running a political interference scam sending out complaints about violations by Judge Aileen Cannon. Cannon is presiding over Donald Trump’s Florida trial on allegations of mishandling classified documents. And I have filed an amicus brief in that lawsuit. And then Pryor determined there is nothing to these alleged violations. Putting false complaints in front of various judicial bodies is merely a way for some complainants to get rid of a judge for a case that is important to them.

If you open up an office like this, it will simply breed rumors and allegations.

Making complaints about a justice over the behavior of a family member is just a non-starter.

The most important situation involving a justice’s spouse or other relative is when the spouse or other relative has a financial connection to a litigant or lawyer before the Supreme Court and, therefore, that the justice impliedly benefits from that relationship. That should be the dominant concern. So, for example, if the judge’s wife is getting a salary from an organization that is a litigant before the Supreme Court, that is a conflict. But if the judge’s spouse is merely participating in politics, that should not be considered a conflict— unless we only want single justices.

Many people think that when they lose a court case, it means that they are a victim of some horrible systemic problem or bias or norm-violation. But the fact of the matter is that judges are normal people, too — they have spouses, children, and parents, and many of these people are accomplished people who do important things that are newsworthy themselves. And that should not be a problem for a justice in the recusal sense. 

I don’t think there is any law on this point. Chief Justice Roberts has already expressed the opinion, which I think is shared by many judges and justices, that Congress cannot regulate many aspects of how the Supreme Court carries out its judicial role and, I think, certain elements of judicial administration. Whether Roberts is right about that is something that can only be determined through either a constitutional amendment or actual litigation. And, perhaps, the only way you will get actual litigation would be if a Supreme Court justice or other judge tried to litigate it.

Rep. Dan Goldman (D-N.Y.) at a press conference promoting the Supreme Court Ethics and Investigations Act, earlier this month outside the Supreme Court. (Office of Rep. Goldman)

That may well happen.

This has happened before, when there are issues about the federal government allegedly lowering or failing to pay the salaries of federal judges. The federal judge sues, and the litigation gets heard by other federal judges who are affected in just the same way. Issues that only affect federal judges get litigated before federal judges. That is a good example of how sometimes a judge judges his own case. 

It is not a good thing, but often there is no way around it.

There are rules that have to do with using government property and time and employees for personal publications that you are going to be paid for. And those rules apply to the whole government, including Supreme Court justices. I’m not saying she did this, but if one used government employees for one’s paid memoirs or other books that one is going to sell, that could be problematic.

If one is receiving expensive gifts from people who are not litigants before your court, what is the ethical violation? 

I think what people are seeing as an ethical violation is that it just looks unseemly that there should be this dependency on wealthy people. But that is not the way the traditional ethics system works. The way the traditional ethics system works is that receiving a gift from a litigant, or a lawyer who is in front of you, is problematic. But if you are receiving gifts from somebody else, the only thing that should limit you are the regular rules that apply to all government officials’ receiving gifts. 

While a justice’s receiving expensive gifts from a very wealthy person looks odd, that does not mean it is unethical as a matter of judicial ethics. There is certainly no rule in place today that generally bars government officials or Article III judges and justices from receiving gifts. That said, there are some rules about government officials’ receiving gifts. Usually these rules involve mandates for timely disclosure for gifts of significant value. And, of course, the members of the Supreme Court, because they hold appointed federal positions, are, apparently, barred (absent congressional consent) from receiving presents from foreign states. But that is a story for another day. 

rborchardt@hamodia.com

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