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Why Supreme Court Justices Avoid Certain Topics: Ethics - pierrerosen [entries|archive|friends|userinfo]
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Why Supreme Court Justices Avoid Certain Topics: Ethics [Jan. 28th, 2007|08:57 am]
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In a recent column in Slate, Dana Lithwick makes much ado about Supreme Court Justices avoiding topics that might come before the court.

Unfortunately, Ms. Lithwich fails to address the simplest explanation why Justices will not discuss questions by reporters that are going to come before the court on turbulent issues. The answer is simple, so simple that a first year law student could answer the question: Judicial Ethics.

The Code of Conduct for United States Judges allows Judges to engage in extra-judicial activities to improve the law, the legal system, and the administration of justice. However, the Code explicitly warns that a Judge should avoid impropriety and the appearance of impropriety in all activities to minimize the risk of conflict with judicial duties. A Judge should also refrain from political activity.

Most importantly, the Code specifically admonish Judges to avoid public comment on the merits of a pending or impending actions.

While the Code is not binding upon the Supreme Court, it was approved by the Chief Justice and the Judicial Conference and is binding upon the lower courts; therefore, the Supreme Court must set a good example. Otherwise their hypocrisy would destroy their ability to effectively administer the lower courts. Furthermore, a breach of judicial ethics by a Supreme Court Justice could potentially lead to disciplinary action by State Bar disciplinary committee, which would be a political disaster for the Judge. One could even imagine situations where impeachment and removal by Congress could result from unethical conduct.

Looking at these rules as a whole, one can see why most of the Justices refuse to comment on "volatile" and "turbulent" cases. They don't want to loose their legitimacy as an institution by appearing partial and political.

Ms. Lithwich's column attempts to address the exceptions from this general stance. She admonishes Justice Breyer for discussing Brown v. Board of Education in the same week that he was hearing two school-integration cases and criticizes Justice Stevens for discussing flag-burning and Justice Scalia for discussing Bush v. Gore. However, these arguments are red herrings, since these areas are generally considered settled law by the vast majority of the legal community. To the extent that the issues are not settled law, the Justices routinely refuse to address the fine points which might come before the court.

This is not to say that the Court does not have ethics problems. According to a report on ABC News, Justice Scalia "spent two nights at the luxury resort lecturing at the legal seminar where ABC News also found him on the tennis court, heading out for a fly-fishing expedition, and socializing with members of the Federalist Society, the conservative activist group that paid for the expenses of his trip." And shockingly, Justice Clarence Thomas "received tens of thousands of dollars in valuable gifts, including an $800 leather jacket from NASCAR, a $1,200 set of tires, a vacation trip by private jet, and a rare Bible valued at $19,000."

These appearances of impropriety harm the institution of the Supreme Court and to rule of law in the United States. The Supreme Court should be embarrassed.

ABC News Story | Slate Story | digg story
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