On Feb. 23, a group of 107 law professors from across the country sent a letter to Senate Judiciary Committee leaders Sens. Patrick Leahy and Charles Grassley and House Judiciary Committee leaders Reps. Lamar Smith and John Conyers, proposing that U.S. Supreme Court justices be subject to the same Code of Conduct other federal judges are.
“In light of the role the Code of Conduct plays in protecting the integrity of the judiciary, justices on our nation’s highest court should set the standard for judicial ethics by adhering to the same ethical rules as other judges,” the letter states. “In our view, voluntarily looking to the Code of Conduct for “guidance” has proved insufficient.”
In addition, the letter urges the committees to hold hearings and advance legislation to: 1) establish a set of procedures to enforce the code’s standards as applied to Supreme Court justices; 2) require a written opinion when a Supreme Court justice denies a motion to recuse; 3) determine a procedure, or require the court to do so, that provides for review of a decision by a Supreme Court justice not to recuse himself or herself from a case pending before the court.
“I don’t know why this has taken so long,” said Cornell University Law School Professor W. Bradley Wendel, who was among the professors signing the letter. “I think the court is jealous. It’s a separation of powers point here. The
Supreme Court likes to be free of interference to do what it thinks is best. The court wants to be the final arbiter of what it thinks is proper.”
Wendel said the letter was much like an amicus brief and the ad hoc group of law professors wanted to “lay the groundwork” to raise awareness of the need to bring more transparency to the court.
Wendel cited the 2004 example of Justice Anton Scalia’s duck hunting with then Vice President Dick Cheney. Later, Justice Scalia refused to recuse himself from a case involving Cheney.
Leahy, D-Vt., was one who called on Justice Scalia to recuse himself.
“Such near sightedness on a matter so basic to public trust in the independent judiciary is as puzzling to the American people as it is harmful to the court,” Leahy said. “For other courts, the reason to recuse under such circumstances would be self evident.”
The law school professors cited the Supreme Court’s own case of Caperton v. A.T. Massey Coal Co., 129 S.Ct. 2252 (2009) in the letter saying: “Unlike Caperton, where the Supreme Court reversed the self-judged view of a single state court judge, there is no review procedure for recusal decisions by Supreme Court justices.”
The letter goes on to say that it is inexplicable that, “we still allow Supreme Court justices to be the sole judge of themselves on recusal issues.”
Professor Wendel said he is not overly optimistic that Supreme Court reform will happen anytime soon despite the fact that there is currently debate on whether Justice Clarence Thomas should recuse himself from any deliberations on the constitutionality of President Obama’s national health care law due to his wife’s work as a lobbyist with a group that opposes that law.
But, he said, “there is no non-political time” for the issue to be dealt with.
“The ball is now in Congress’ court,” he said.