June 30, 2011
Ethics, Politics and the Law
NY TIMES

The ethical judgments of the Supreme Court justices became an important issue in the just completed term. The court cannot maintain its legitimacy as guardian of the rule of law when justices behave like politicians. Yet, in several instances, justices acted in ways that weakened the court’s reputation for being independent and impartial.

Justices Antonin Scalia and Samuel Alito Jr., for example, appeared at political events. That kind of activity makes it less likely that the court’s decisions will be accepted as nonpartisan judgments. Part of the problem is that the justices are not bound by an ethics code. At the very least, the court should make itself subject to the code of conduct that applies to the rest of the federal judiciary.

Among the court’s 82 rulings this term, 16 were 5-to-4 decisions. Of those, 10 were split along ideological lines, with Justice Anthony Kennedy supplying the fifth conservative vote. These rulings reveal the court’s fundamental inclination to the right, with the conservative majority further expanding the ability of the wealthy to prevail in electoral politics and the prerogatives of businesses against the interests of consumers and workers.

¶It struck down public matching funds in Arizona’s campaign finance system, showing again a contempt for laws that provide some balance to the unlimited amounts of money flooding the political system.

¶It made it much harder for private lawsuits to succeed against mutual fund malefactors, even when they have admitted to lying and cheating.

¶It tore down the ability of citizens to hold prosecutors’ offices accountable for failing to train their lawyers, even when prosecutors hide exculpatory evidence and send innocent people to prison.

¶It issued a devastating blow to consumer rights by upholding the arbitration clause in AT&T’s customer agreement, which required the signer to waive the right to take part in a class action.

¶Finally, in the complex Wal-Mart case, the conservative majority, going beyond the particular issues in that case, made it substantially more difficult for class-action suits in all manner of cases to move forward.

These and other decisions raise the question of whether there is still a line between the court and politics, an issue since the Republican-led Rehnquist court decided Bush v. Gore in 2000, though the federal judiciary’s shift to the right has been happening since the administration of Ronald Reagan.

The framers of the Constitution envisioned law as having authority apart from politics. They gave justices life tenure so they would be free to upset the powerful and have no need to cultivate political support. Our legal system was designed to set law apart from politics precisely because they are so closely tied.

Constitutional law is political because it results from choices rooted in fundamental social concepts like liberty and property. When the court deals with social policy decisions, the law it shapes is inescapably political — which is why decisions split along ideological lines are so easily dismissed as partisan.

The justices must address doubts about the court’s legitimacy by making themselves accountable to the code of conduct. That would make their rulings more likely to be seen as separate from politics and, as a result, convincing as law.

The Unethical Clarence Thomas