Supreme Court Ethics And Reviewing The Health Law

In the coming term, the Supreme Court is expected to review President Obama's health care law. With that in mind, some interest groups are raising questions about the court's ethics rules that govern when a justice should be disqualified from a case. Should Justice Clarence Thomas have to recuse himself because his wife has actively and publicly opposed the health care law? Or, should Justice Elena Kagan disqualify herself because she was a top legal official in the Obama administration when the law was enacted?

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MELISSA BLOCK, host: In the coming term, the Supreme Court is expected to review President Obama's health care law. With that in mind, some interest groups are raising questions about the court's ethics rules that govern when a justice should be disqualified from a case. Should Justice Clarence Thomas have to recuse himself because his wife has actively and publicly opposed to the healthcare law? Or should Justice Elena Kagan disqualify herself because she was a top legal official in the Obama administration when the law was enacted?

NPR's legal affairs correspondent Nina Totenberg has the second of two reports on Supreme Court ethics.

NINA TOTENBERG: As long as there's been a Supreme Court, each justice has decided for himself or herself when to step aside and not participate in a case. Yes, there are rules of the road. But the decision to recuse rests with each individual justice. And that, of late, has provoked a volley of criticism from liberal groups, critical of the behavior of some conservative justices.

Common Cause even asked the Justice Department to investigate Justice Clarence Thomas's actions, a move seen by most independent court observers as both futile and groundless. But it isn't just liberal groups crying foul. So, too, are many of the nation's leading newspapers and scholars.

NYU law professor Stephen Gillers is the author of a leading text on judicial ethics.

STEPHEN GILLERS: The justices really are virtually untouchable. They have to worry about public opinion but they don't have to worry about anything else.

TOTENBERG: American University law professor Herman Schwartz is one of more than 100 law professors who signed the letter calling for a new ethics law that would be binding on the Supreme Court.

HERMAN SCHWARTZ WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY: No person should be in charge in his or her own case.

TOTENBERG: indeed, that was the view expressed by Justice Anthony Kennedy, writing and speaking for the U.S. Supreme Court in an opinion reversing a West Virginia Supreme Court decision. The U.S. Supreme Court said that one of the state judges should have recused himself from the case, because he was the beneficiary of $3 million in campaign spending by the CEO of the company in whose favor he ruled. As Justice Kennedy put it: the judge may have honestly believed he was unbiased but that's not enough.

Justice ANTHONY KENNEDY: The difficulties of inquiry into actual bias, and the fact that the inquiries often a private one, simply underscore the need for objective rules. Otherwise there may be no adequate protection against the judge who simply misreads or misapprehends the real motives at work in deciding the case.

TOTENBERG: So what are the rules for Justice Kennedy and his colleagues? There are two sets of ethics rules that govern the federal courts. The first is a statute that applies to all federal judges, including Supreme Court justices. It has a general rule that bars judges from participating in any case in which their impartiality might reasonably be questioned. The statute then spells out specifics: the judge must recuse himself if he has even one share of stock in a company that is a party to a case, or if a close family member is involved, or if the judge participated in the case while a lawyer or a government official.

Again, these are legal requirements that apply to all judges, including Supreme Court justices. Then there is the code of conduct, which applies only to the lower federal court. The code is described by experts as an advisory or aspirational set of guidelines. It says, for example, that judges should not join discriminatory clubs or take part in fundraising.

While the code is aspirational, judicial disciplinary committees can and do rely on it in admonishing judges when they step over the line. But the code does not apply directly to Supreme Court justices, and that has drawn a lot editorial page criticism.

Many of the justices, nonetheless, have said that they do in fact feel bound by the code. Here are Justices Anthony Kennedy and Stephen Breyer responding to a question at a congressional hearing. First Kennedy, then Breyer.

KENNEDY: Of course, the court has to follow rules of judicial ethics. That's part of our oath.

Justice STEPHEN BRYER: We do follow the rules. They do apply and somehow it's gotten around they don't. Well, they do.

TOTENBERG: Indeed, some justices have sought advice from a judicial ethics committee that renders advisory opinions to lower court judges. Retired Justice Sandra Day O'Connor has said she and her colleagues often consulted each other on ethics questions when she was on the court. And Breyer has said he's consulted leading ethics experts, like Professor Gillers.

There are some complicating factors that Supreme Court justices face when considering recusal. A lower court judge can easily recuse and be replaced by another judge, not so a Supreme Court justice whose recusal might result in a case being a 4-to-4 tie. For this reason, for example, Justice Breyer - who had worked as a Senate staffer on the law setting up a federal sentencing guideline system - consulted Professor Gillers about whether he should sit on a case challenging the constitutionality of those guidelines.

Gillers said that because Breyer had not been involved in the prosecution or defense of the particular case before the court, he was free to sit.

Still, the assurances have not satisfied everyone. Congressman Chris Murphy, a Democrat from Connecticut, now has 27 co-sponsors on his bill to make the code binding on the Supreme Court, including its enforcement mechanisms.

Representative CHRIS MURPHY: Without any real disclosure and transparency requirements, without any enforceability on the code of conduct, we're just left at believing the word of the justices.

TOTENBERG: But even those who agree with Murphy often regard his bill as problematic.

Professor Schwartz.

HERMAN SCHWARTZ: The Murphy Bill is clearly very flawed. It can't work. There is no question that the code, especially as it applied to justices, would be unenforceable in the sense that somebody would take action against them and slap their hands.

TOTENBERG: The Brookings Institution's Russell Wheeler notes that the Constitution provides for one Supreme Court and if some other group of judges were designated to rule on Supreme Court conflicts...

RUSSELL WHEELER: It probably violates the constitutional mandate that there be one Supreme Court.

TOTENBERG: Any enforcement mechanism is unworkable, adds Professor Schwartz.

SCHWARTZ: First of all, no lower court judge would dare to say, justice so-and-so should have recused him or her self. Secondly, once a justice has made a judgment, the other justices are not going to publicly review that and say, you done wrong.

TOTENBERG: A variety of experts, however, believe the lack of an enforceability mechanism should not prevent the code of conduct from being made binding on the court. Professor Schwartz.

SCHWARTZ: Not everything depends on a sanction. A lot of rules that we live by are because it's understood that there are certain things you don't do and it helps to have it laid out.

TOTENBERG: Professor Gillers says the Supreme Court itself could solve the perception problem by announcing that the court as an institution has voted to apply the code of conduct to its members, possibly with some minor modifications dealing with the duty to sit so that legal questions are not left in limbo by a tie.

Gillers also suggests that the court adopt some informal way for the justices to get advisory opinions from each other in advance.

Gillers has consistently said that Justice Clarence Thomas has no duty to recuse himself from a case challenging the Obama health care bill because Mrs. Thomas has actively campaigned against the bill. But he contends that, if the court had an informal consultation mechanism in place, Justice Thomas might have consulted his colleagues about his wife's role in advance.

GILLERS: They might say, well, she can do it, but we don't think it's good for us.

TOTENBERG: Harvard Law Professor, Noah Feldman, argues that no change is necessary, noting that the system set up by the founding fathers has served us well.

NOAH FELDMAN: Establishing any form of supervisory body over the Supreme Court, even a supervisory body made up of themselves, would fundamentally change the principle of judicial independence.

TOTENBERG: Or as the Brookings Institution's Russell Wheeler puts it...

WHEELER: This may just be a situation we should live with because any cure is worse than what we have now.

TOTENBERG: Absent a headline case of abuse that truly inflames public opinion, that attitude is likely to govern the court for some time to come.

Nina Totenberg, NPR News, Washington.

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