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John Roberts on Mandatory Ethics Rules: Thanks, But No Thanks

by Nan Aron

Yesterday, Chief Justice John Roberts told Senate Judiciary Committee Chairman Patrick Leahy and the American people that the Supreme Court of the United States, apparently alone among all institutions of American government, doesn't need formally binding ethics rules and has no intention of adopting any. In a terse statement, the Chief Justice flatly rejected a recommendation by Chairman Leahy and Senators Durbin, Whitehouse, Franken, and Blumenthal that the Court voluntarily, explicitly, and formally adopt the same Code of Conduct that governs every other federal judge.

All federal judges are required to abide by a set of ethics rules spelled out in the Code, which includes many general guidelines, and also specific common-sense prohibitions on engaging in political activity and being active participants in fundraisers. These rules are designed to protect individual judges--and the judicial system as a whole--from even the appearance of partiality or impropriety so that the American people can have complete confidence that federal judges act without personal bias or political agenda.

But there are nine federal jurists who are exempt. The Code does not formally apply to the Supreme Court of the United States, except, perhaps, as "guidance."

Because the Code has never been formally adopted by the Court, it may be followed--or not--at the whim of individual justices, the chief justice's assertions that justices are always models of ethical behavior notwithstanding.

Regrettably, the record shows that even though justices have asserted that they abide voluntarily by the Code, the recent behavior by several of them demonstrates that either they don't understand its provisions or they are willing to ignore them. When Antonin Scalia and Clarence Thomas feel comfortable attending political strategy meetings of the Koch Brothers and Samuel Alito willfully headlines fundraisers for conservative organizations, it's clear that the provisions of the Code explicitly banning exactly that kind of behavior are not taken seriously.

Chief Justice Roberts' statement today ensures that ambiguity, confusion, and uncertainty will continue to characterize the ethical environment of the Supreme Court. His decision will only serve to undermine confidence in the integrity of the Court in a year packed with high-profile cases of enormous importance and add to a growing public perception that our democratic institutions are increasingly opaque and unaccountable.

No harm can come from volunteering to formally and strictly adhere to the same rules that every other judge abides by. Saint Augustine wrote of laying the "foundation of humility." If the Court wants to rebuild its slipping reputation, that wouldn't be a bad place to start.

Note: This blog entry will also appear on Nan Aron's Huffington Post page.