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Editorial: A code of ethics could help the Supreme Court maintain integrity

The Editorial Board, Chicago Tribune on

Published in Political News

Thomas defenders have cited the example of Thomas’ ideological opposite, the late liberal Justice Ruth Bader Ginsburg, whose husband Martin Ginsburg, a prominent tax lawyer, was often tied directly or indirectly to cases before the high court. In 1997, he made headlines by selling stocks in eight companies after his wife was revealed to have participated in cases involving the companies.

Conservative critics also criticized Justice Ginsburg for hearing cases that involved the ACLU and women’s rights organizations with which she had worked before she became a justice.

Coincidentally, the most prominent allegations of recusal abuse in modern times include Justice Antonin Scalia, famously known to be Ginsburg’s opera buddy despite their polar-opposite ideologies.

In 2004, Scalia rejected calls to recuse himself from a case involving then-Vice President Dick Cheney’s energy policy task force despite having gone on a hunting trip with Cheney.

In a notable defense, Scalia insisted that he had “never hunted … in the same blind or had other opportunity for private conversation” with Cheney.

And who are we to judge? Well, that’s not a flippant question. The question of whether to recuse of not is a judicial decision, legal scholars note, reviewable only by a higher court — and there is no court higher than the Supreme Court.

The case of the Thomases has renewed interest in proposals suggested over the years, including a “super court” that would have the power to oversee the Supreme Court. But even if such a body were created, Brookings Institution legal scholar Russell Wheeler observes in a recent essay that the “process” could not order a judge off the case unless he denied a party’s recusal motion, “and parties are reluctant to file recusal motions for fear of offending a judge.”

 

Wheeler concludes with a pithy 1953 observation by Justice Robert Jackson: “We are not final because we are infallible, but we are infallible only because we are final.”

Indeed, in settling disputes, that finality can be rewarding or frustrating in the short run, depending on which side wins or loses. But over the long haul, the court’s effectiveness relies on the ability of its justices to show integrity and independence from outside influences.

That integrity can be strengthened if the Supreme Court adopted a code of ethics that would help justices navigate potential instances of undue influence and other judicial tripwires.

Like umpires, the Supreme Court may not be infallible in our democracy but its judgments are final. If justices cannot display independence from outside influences, then perhaps a code of ethics can restore the confidence and trust in the body that as begun to wane among an increasing number of Americans.

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