How ethical are these Supreme Court justices?

Nov 28, 2011

Just a little more than an hour after some House Democrats recently demanded an inquiry into Supreme Court Justice Clarence Thomas's ethics, Senate Republicans stepped up the pressure on Justice Elena Kagan to take herself out of the court?s decision on the health-care reform act.

Chat with judicial ethics expert John Steele about whether or not these Supreme Court justices should take themselves out of the health-care reform act ruling, and about judicial ethics in general.

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Read: Health-care case brings fight over which Supreme Court justices should decide it

Hello everyone. My name is John Steele and I'm glad to be participating in this online chat about the judicial disqualification (recusal) issues surrounding Justices Thomas and Kagan.

Why would we assume any of the judges would not be impartial?  They take an oath to be. Their summarys would tell us how honest they are, and should be backed up with facts. That is why they were honored with being picked to be there.

We do have to trust them to some degree -- even though we know that they have political and jurisprudential commitments.

How ethical are the people demanding recussal, if it is only for political reasons?

I suppose that citizens can demand whatever suits them, but in the long run we're better served by a principled approach. I have been disappointed in some legal ehics profs for letting their politics get in the way of their analysis. I do expect more from them, but, technically, they haven't breached the ethics rules even if they offer over-reaching arguments.

Thomas and Scalia dining with the law firm who presents the case should be enough for both of them to recuse themselves. But apparently they are so used to being corrupt without reprisal that they've gotten brazen. Maybe Thomas will lie about being there just like he did with his wife's $600,000 contributions to her conservative website. - Post commenter Denver13

At the very same dinner were lawyers and law firms that represent parties SUPPORTING the health care statute. Besdies, those Federalist Society dinners are perfectly appropriate.

How can insurance companies be a part of a national health care plan without effective or federal regulation of insurance? An example of the problem is TIG Insurance. TIG Insurance is listed by the Colorado Division of Insurance as being active and selling medical insurance. However, the address is a residence, the phone number is a personal cell phone and when I called I was told they had been out of business for years. But they could have just started charging my credit card for bargain rate medical insurance. There are hundreds of companies selling insurance into the U.S. from Bermuda which offers minimized regulation if there is no intention to sell insurance in Bermuda. Isn't it time that the federal government regulates insurance?

I'm not an expert on the constitutional question, just on the ethics issue. (I do predict the statute will be upheld.)

What do you all think about Justice Kagan's "participation" or lack of participation?

I fear the Justices lost public respect in the Gore v. Bush ruling. Do they seem aware that the public is now viewing them in a more partisan light?

Great question. Polls show that after Bush v. Gore the SCOTUS did regain its public support, which is important. Although I don't think Justices Scalia and Thomas should recuse, I think that they should be more sensitive to the appearance of the conferences they attend. They should attend some liberal-sponsored conferences too.

How often do these conflict of interests happen in the Supreme Court?

It's quite unusual for a Justice to have to "recuse," or disqualify himself or herself, except where, for example, the Justice had been Solicitor General.

Do you feel that there is a conflict of interest if a justice's spouse (Thomas, in this case) was lobbying either for or against the case being brought before the court? I would apply this to any justice in any case.

We have to be careful when using a spouse's political activities or views to DQ a judge. Spouses are permitted to ahve political lives, too. Judge Reinhardt, in the 9th Circuit, is married to an ACLU lawyer who had been involved in the same sex marriage case, which was then assigned to Judge Reinhardt. He didn't recuse himself and I think he was correct not to do so.

On the other hand, if the spouse is a party or represents a party, DQ is appropriate.


[edit]  So was it "lobbying" pre se, or just public advocacy?

I think with Thomas, the issue is less with the conferences than his wife being a paid lobbyist for groups trying to overturn the law. Would that not be an instance to recuse himself?

I believe that when the issue arose, she stepped out of that position, to avoid any issues of DQ. If she were a party in the case or a lawyer for a party in the case, it would be pretty clear that DQ would be the right answer.

Here's the key language from the statute 28 USC 455:

He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding

Congress needs to set the guidelines on this as a matter of the "good behavior" clause. As a federal attorney, I have no faith in the Supreme Court to ever do the right thing, ethically, but mainly politically. Their biases have grown more and more evident through the years and I'd be happy throwing all the bums out and starting over. And ask me as a tribal member how I feel about their behavior, the judicial coherence and ethics when it comes to federal Indian law.

I'm in favor of judges doing the right thing, but remember that if we draft lots more rules on DQ events, we'll get lots more partisan motions to DQ and we can erode confidence in the system.


[edit] Also, Congress's power to dictate to the SCOTUS might not be a good thing!

So, in your opinion, what would be a reason for recusal? If a spouse making hundreds of thousands of dollars doesn't questino one's impariality, what would?

Please be specific. She was associated with a political group that supported conservative causes, but she stepped down from that group before the court took the case and even if the "conservative side" prevailed she wouldn't win damages or attorneys fees for herself personally or for that group.

In regards to Justice Elena Kagan, didn't William Rehnquist have a similar issue when he was appointed to the SCOTUS and didn't recuse himself. I can't remember the case and William Rehnquist's involvement in it.

He had been in the Exec Branch, altho i don't recall the recusal specifics. Moving from the Solicitor General to the SCOTUS can lead to some early recusals. That's been true for Justice Kagan, but she tried to carve out the healthcare case and not participate while SG.

Per her bio and several articles, she set up her own lobbying firm as a self appointed ambassaor to the Tea Party Movement, and in th articles has been lobbying Repubican members of Congress to repeal the healthcare law (NY Times)

I understand that she doesn't like the law, but that's not a recusal event for Justice Thomas -- and it shouldn't be, in my view. Unless the spouse is directly financially benefitted or a party or party's lawyer, we should let spouses have their own political lives. That was true with Judge Reinhardt in the same sex marraige case.

We don't have much confidence in the system now. Nor in these clowns.

I understand your views. But adding lots of DQ events won't necessarily help that.

According to the washington Post article today, Kagan's email that it was "simply amazing!" that healthcare reform would pass only "seemed to indicate" that she supported reform? Do you agree that her email only "seemed to indicate" her support? In your view, how many more emails did her office need to send stating "Kagan must be kept in the loop re heathcare litigation" before her recusal is required?

Those are very good questions. I, too, found the votes amazing. If she had been more vocal and specific, she might have had the problem Scalia did in the Pledge of Allegiance case and needed to step down. As for her being cc'd on emails, it takes more than that to "participate as adviser or counsel."

If partisans on the right want to make the case for why Justice Kagan ought to be recused and those of the left are doing to the same to Justice Thomas, good for them. Partisan is a bad word to me and admire people for going out and being informed and passionate on issues. If Justices Kagan and Thomas's defense of why he shouldn't be recused is strong or weak is the main issue for me.

My problem would be with letting partisan zeal infect the recusal issue --  because almost half of everything seems to have an appearance of impropriety to a partisan!  That is, everything "they" do seems improper and what "we" do isn't. We can't let that infect judicial recusal.

Are Supreme Court justices too powerful when it comes to recusals? Should it really be up to the "honor and wisdom" of the justice to decided alone?

Great, tough question. But the problem is that if we take the deicsion away from the SCOTUS justice, we necessarily hand it to someone else who suffers from all the same issues of potential bias. Who will judge the judge who judges the DQ? So we have to trust the justices or we simply restart another round of fighiting over bias.

Mr. Steele, thanks for taking questions today. There was a recent Gallup poll showing an approval rating of 46% for the Supreme Court--down 5% from 2010 and 15% from 2009. Do those numbers surprise you at all, or should the Court (and the public) not care about them in the first place?

I'm worried about taht, and I wonder if the problem isn't the hyper-partisan mood. For that very reason, I'd prefer that Justices Scalia and Thomas go out of their way to speak at conferences by center-left or even lefty organizations. Alternatively, they can clam up, but I don't think that's required.

It was Bush v. Gore that drove down the reputation of SCOTUS because Scalia and Thomas had direct conflicts and did not recuse themselves. Thomas' wife and Scalia's son both were financially involved with the Bush team. These were worse violations than anything in this current case.

IIRC, the votes on the closest issue were split right along party lines. That happens and my assumption is that no justice wanted the SCOTUS to take on that role.

A bit off topic, I realize, but was curious when you said you think the law will be upheld. I've been hearing mostly the opposite, can you give us a brief summary of why you think the law will prevail?

I'm not a consitutional scholar, but here's my two cents. Under Rehnquist we briefly had a series of cases limiting the power of the federal government. There seemed to me to be no deep wellspring of political support for those and the doctrine largely got whittled away or ignored. In my view, Justice Roberts is a pro-government and pro-establishment type. Alito may or may not be. Kennedy will be looking at his long term reputation and doesn't see any viable point of striking down Congress on commerce grounds. So I see it 6-3 or better in support of the statute. Kennedy will write the majority opinion.

From me and my co-authors at Legal Ethics Forum, we thank you. (All views were my own.)

In This Chat
John Steele
Mr. Steele is a solo practitioner, representing clients on matters of legal ethics, professional liability, risk management, and the law of lawyering. For over fifteen years, John Steele served as the top internal ethics lawyer at an AmLaw 100 and an AmLaw 200 law firm. He has taught legal ethics for about thirty semesters at Uuniversity of California - Berkeley, Stanford Law School, Indiana University Maurer School of Law, and Santa Clara University. He has served on a variety of professional committees, including the State Bar of California?s standing Committee on Professional Responsibility and Conduct (COPRAC). He speaks widely to professional audiences about legal ethics and risk management, provides CLE credits in ethics, the elimination of bias in the legal profession, substance abuse, and law practice management, and is a co-founder of a leading blog on legal ethics, Legal Ethics Forum.
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