We Don't Need No Stinkin' Code of Ethics

William Howard Taft was the 27th President of the United States, and the 10th Chief Justice of the Supreme Court.  Though known primarily for his size (these days) he was also remarkable in other respects.  For example he is the only person to be both a President and Chief Justice, as already noted.  That is so notable that I might be forgiven for noting it twice.

Taft's quote appearing at the top of this post makes an important point; one he was uniquely qualified to make.  The Supreme Court and its decisions go on forever, or will go on until that Court is disbanded for one reason or another.  The Justices of the Supreme Court also go on, seemingly forever to those who dislike them, but at least until such time as they die, retire or are otherwise removed.  The only way in which they may be removed without their consent is through the cumbersome process of impeachment.

The Founding Fathers of our Great Republic were so eager to assure an "independent judiciary" that they provided for this in the Constitution.  The idea was that the Supreme Court would thus be removed from political influence. It's questionable, however, that the Justices can reasonably be considered independent in such a sense, particularly in these disturbing times.

The process by which they obtain their high places is already entirely political.  If we pay attention to it, we'll observe the machinations of members of Congress designed to assure that Justices toe a particular political line.  Prospective Justices may wriggle as much as they wish, and give lip service, at least, to the maxim that judges should not prejudge cases which may come before them, but ultimately they must surrender or compromise if they want Congressional consent to be given.  It's a sad display, but that may be said of most of the actions of our representatives in Congress assembled, shackled as they are by their devotion to money and those who have and spend it or may withhold it.

Once they've ascended to the Court, the salary they're paid is relatively small--roughly $275,000 dollars, more but not less.  But they can easily enough supplement that income by writing, or giving speeches, and in that fashion can be rewarded in millions of dollars.  It may reasonably be said that they make a comfortable living.

Lately we learn that certain of them enjoy the friendship of fabulously wealthy people, Republican donors, who have funded expensive, extravagant and exotic trips and vacations they take, gratis.  It seems that those individuals or companies in which they hold an interest have been parties to or interested in matters which come before the Court, but that the Justices in question have declined to recuse themselves.  We're assured by them, however, that they haven't discussed such matters or it seems anything of significance with their benefactors, and that all is well.  The expensive gifts of such travel have had no impact upon them, particularly where their judicial duties are concerned.

Those like me are unimpressed by such responses.  It's true that enjoying the blandishments of the very wealthy isn't in itself illegal.  But there remains the significance of avoiding the appearance of impropriety, something public officials of all kinds are urged to do.  It's difficult to understand that the Justices in question would maintain that no such appearance arises.  Claiming that one has good, very wealthy friends who lavish money on you merely because they treasure your company doesn't strike me as a reasonable explanation, no matter how conceited one may be.

The Justices are fortunate, though, that there is virtually no legal limit on their venality.  Nor do they show any inclination to accept a limit.  Supposedly, they have agreed to follow the Code of Ethics which applies to all other federal judges, but as they are themselves the sole judges (well, I know, but it's true) of their own conduct, only their personal honor is at stake if they decide not to consent to the Code in particular circumstances.  It's pleasant to believe that those who are in effect immune from sanction and in a significant position which they hold during their natural lives will be rigorously honorable, but there is no need for them to discipline themselves. 

Once more, we have the Founding Fathers to thank for the untouchable status of the Justices.  Congress and the executive are powerless.  Any effort to restrain the Justices will be subject to attack as unconstitutional, even if the restrictions are unobjectionable.  Then there is the problem that there can be no tribunal higher, or more supreme, than the Supreme Court itself.  A Justice may be impeached, and in that case the legislature may review and condemn conduct or a particular kind, but as far as I am aware there has been only one impeachment trial of a Justice in our nation's history; that of Justice Samuel Chase in 1804-1805.

It's likely that the most that can be expected is that the Court will deign to police itself.  The reaction of the Justices in question to the revelation of their acceptance of the vast generosity of those willing, apparently for no practical reason, to expend huge sums on their entertainment, doesn't suggest that any real policing will take place.  They seem stunned anyone would have the temerity to question their ethics and take refuge in claims of innocence and assurances they receive from those in no position to supervise them.

Perhaps the publicity regarding the acceptance of lavish gifts of this kind from interested political agents, and the inference that their actions will be scrutinized in the future, will serve to make Justices more discreet, at least, and more inclined to decline favors from those anxious to endear themselves to them.  If not, however, there is the risk that the Justices will come to be seen as craven as most of our elected officials.