NINA TOTENBERG: 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.
M: 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: 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: 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: Almost immediately, that particular attack lost its sting. Here's the Brookings Institution's Russell Wheeler.
M: 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.
GILLERS: It's very hard to say no to a judge.
TOTENBERG: 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: 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: 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: Nina Totenberg, NPR News, Washington.
MONTAGNE: This is NPR News.
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