Perhaps the most notorious event in modern history concerning the ethics of a SCOTUS individual occurred in 1969 when the nomination of Justice Abe Fortas by LBJ to be Chief Justice was scuttled by a swirl of questionable conduct by Mr. Fortas (including providing political advice to LBJ) along with some nasty politicking by Senator Strom Thurmond. In second place is the 2004 duck hunting trip organized by then-VP Dick Cheney, which included Nino Scalia. Some will recall that this adventure also produced a gunshot face wound to a participant. At the time, SCOTUS was preparing to hear a case involving Cheney’s involvement as a defendant, an action brought by environmental groups. Responding to criticism about the appearance of ethical trespass, Scalia angrily responded:
I don’t think my impartiality could be reasonably questioned.
In fact, the establishment and existence of codes of ethics, especially for lawyers and jurists, is precisely the counterpoint to Scalia’s assertion: such codes assist in ensuring that even the appearance of impropriety is proscribed. The power and influence of the nine Supremes cannot be overstated, especially in split decisions. Neither the public nor public policy must be reliant upon the personal ethics of officials. It is the very reason that a number of agencies exist to police the conduct and behavior of officials, from Congress to the White House. The absence of a code of ethics for SCCOTUS is not only an anomaly but a dangerous loophole.
Presently, a Trump nominee, Neomi Rao, has been advanced to the full Senate for confirmation to succeed to Brett Kavanaught’s seat on the DC Circuit, one of the most influential in the nation. That nomination met some headwinds from conservative senators who were concerned that Rao was not sufficiently opposed to Roe v. Wade. She was a former clerk to Clarence Thomas.
According to news sources, Thomas has engaged in a covert campaign to lobby for Rao’s appointment. The Washington Post reported at least two senatorial contacts by Thomas, one of which was acknowledged by Senator Tim Scott. This sets a horrible precedent. Thomas may be in a position to rule on decisions in which Rao would participate. In the absence of a code of ethics applicable to SCOTUS, neither Thomas’s lobbying on her behalf nor a mandatory recusal are required. What would have been the result, one wag queried, if a member of the court called Mitch McConnell to promote Merrick Garland’s candidacy? Of course, Thomas could parrot Scalia’s defense. Why are Supreme Court justices the only officials in the United States for whom rules of ethical conduct do not exist? Are we to assume that they are beyond ethical lapses? Abe Fortas resigned; Antonin Scalia simply denied, more exactly ignored, the issue.
On February 10, 2019, VoxFairfax published an excerpt from H.R. 1, a broad statement of voting and ethics reforms adopted by the House of Representatives. That proposition contains a commitment of Congress to create and establish a code of ethics for SCOTUS. The nation is being offered the nail to save the shoe, the Supreme horses, and the kingdom.