RENEE MONTAGNE, host
At times of partisan stress in American politics, the Supreme Court can become part of the game, and the ethics of individual justices can come in for criticism. In recent months, liberal groups have chastised conservative justices for attending private conferences put on by conservative political interests. And conservative groups have responded by leveling some criticism in the other direction. NPR legal affairs correspondent Nina Totenberg has that story.
NINA TOTENBERG: It seems clear that some liberal groups are on the prowl for conservative conflicts of interest and ethical missteps. Common Cause, for instance, discovered the Justice Clearance Thomas had failed to report his wife's income when she worked for the conservative Heritage Foundation from 2003 to 2007. That failure was indeed a clear violation of the law, but it was also the kind of oversight that occurs routinely on disclosure forms. And Thomas quickly amended his filings for a 13-year period, saying he had misunderstood the requirements.
More incendiary, in media terms, was the very public role Mrs. Thomas played as cofounder, president, and CEO of Liberty Central, which advertised itself as linked to the Tea Party movement. Here's how she put it last year in a speech to the conservative political action conference in Washington.
Ms. VIRGINIA THOMAS: I have come to know and love the Tea Party patriots. It has been a privilege to become a bit of an ambassador of sorts for the national board.
TOTENBERG Ethics experts agree that while Ms. Thomas's political activities may be unseemly to some, there's nothing in the judicial code of conduct that would require her husband to recuse himself from cases involving the issues she's spoken so publicly about. They also say her public opposition to the Obama health care law does not require Justice Thomas to recuse himself from cases challenging that law.
NYU law professor Steven Gillers, author of a leading text on legal ethics, notes that federal law bars judges from participating in any matter in which they or their family have a financial interest, but ideological or political interests are another matter entirely.
STEVEN GILLERS (Law Professor, New York University): A spouse of a judge can have a full political life and take positions on political issues and legal issues, even ones that come before his or her spouse.
TOTENBERG: What did trouble legal experts about Mrs. Thomas' activism was her salary from an organization funded by secret donors. Liberty Central was started with two large gifts totaling $550,000, and under the tax law governing nonprofits, neither the identity of those two donors or subsequent donors had to be disclosed. That's because her group is organized under a section of the tax code called 501(c)(4). Professor Gillers.
GILLERS: The crunch point comes if Mrs. Thomas' 501(c)(4) gets substantial contributions from companies or trade associations that have interests in matters that are pending at the Supreme Court or headed for the Supreme Court.
TOTENBERG: In the end, Mrs. Thomas stepped down from her position at Liberty Central to take another job that also has a political nature, but far less visibility.
While Mrs. Thomas staunchly defended her right to be a political activist, there's every reason to believe that Justice Thomas' colleagues, his fellow justices, and perhaps the chief justice, quietly made clear that Mrs. Thomas' activities could harm the Supreme Court's credibility as an institution. As Professor Gillers observes, the first line of defense should be self restraint.
GILLERS: You don't want to do something that's unseemly because you can.
TOTENBERG: There are indications the justices also exerted pressure on Justice Antonin Scalia in 2004 when he participated in a case challenging then Vice President Dick Cheney's use of executive power.
Three weeks after the court agreed to hear the case, Scalia went on a long-planned duck hunting trip with Cheney. That prompted two months of drum beating criticism in the press. He finally issued a 21-page memorandum explaining that the trip was an annual event with his son-in-law, that he was one of 13 hunters, and that he had never been alone with Cheney on the trip.
Almost immediately, that particular attack lost its sting. Here's the Brookings Institution's Russell Wheeler.
Mr. RUSSELL WHEELER (Brookings Institution): By the time he was through reading it I said, well there's not a problem here. But why did he wait so long? Why not just deal with these things up front?
TOTENBERG: Justice Samuel Alito has also come in for criticism over his repeated attendance, and on one occasion his keynote speaking role, at fundraising dinners for The American Spectator magazine, which is published and supported by conservative political activists.
The judicial code of conduct bars judges from fundraising activities because, as Professor Gillers puts it:
GILLERS: It's very hard to say no to a judge.
TOTENBERG: In response to stories suggesting ethical shortcomings by conservative justices, Judge Laurence Silberman, a well-known conservative appeals court judge, blasted critics as hypocrites pushing phony concerns. The real ethical concern, he said, should be the activities of retired Supreme Court Justice Sandra Day O'Connor, who has actively spoken out forcefully and often against state judicial elections.
The conservative watchdog group Judicial Watch has also suggested that Obama Supreme Court nominee Elena Kagan should recuse herself from participating in any upcoming case challenging the Obama health care law because she had been a legal official in the Obama administration.
Whatever the merits of each of these examples, they illustrate how the court is being buffeted by interest groups over ethics questions.
Harvard law professor and Supreme Court historian Noah Feldman says both the left and the right have used ethics as a tool for delegitimizing the opposition.
NOAH FELDMAN (Professor of Law, Harvard University): Criticism on ethics issues is often a proxy for political disapproval with how you expect a justice to vote. Beyond saying I think you have a bad interpretation of the constitution, if you can say I think you're unethical, then you've switched the conversation in a way that can sometimes be politically powerful.
TOTENBERG: Feldman doesn't deny that there can be ethical violations, but he adds in the modern world he's doubtful they're a real threat.
FELDMAN: Today, with information moving as fast as it does, it would be very difficult, I think, for the justices to hide any true improprieties, and I think the court is actually, therefore, an extremely ethical place.
TOTENBERG: But many ethics experts believe the court is asking for trouble by not formally adopting the same judicial code of conduct that applies to lower-court judges.
Federal law bars all judges, including Supreme Court justices, from financial conflicts of interest, but the judicial code of conduct, a longer and more comprehensive set of rules, does not, strictly speaking, apply to the Supreme Court, and many court experts think it should.
GILLERS: I think that their credibility would be enhanced.
TOTENBERG: Professor Gillers.
GILLERS: If the public begins to believe that there's a political agenda, that it's not something dictated by our legal tradition, the court's credibility, the willingness of the public to accept its decisions, will be harmed.
TOTENBERG: And that would be a cost far higher than any set of rules could impose.
Nina Totenberg, NPR News, Washington.
MONTAGNE: And you can hear more from Nina on the ethics drama at the Supreme Court later today on All Things Considered.
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