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In his nine-page 2021 year-end Report on the Federal Judiciary, Supreme Court Chief Justice John Roberts has tried to meet head-on current criticism in Congress and the media that the Court finds itself, as Court analyst Linda Greenhouse succinctly puts it, “in a danger zone as a willing – and willful – participant in a war for the soul of the country.”
The fear is that the Court is ignoring settled and long-standing precedent and is becoming partisan to the point that it is institutionally compromised. Among the examples are the Court’s decision essentially upholding the Texas abortion vigilante law, the drift in the oral argument in the Mississippi abortion case, a gun regulation case where the Court’s conservative supermajority seems poised to approve open carry of handguns and possibly assault weapons and the Court’s 6-3 breezy treatment of what is left of the Voting Rights Act. Legal analysts are questioning whether the starboard-tacked supermajority on the Court is changing the settled law just because it wants to.
Many see Roberts as an institutionalist and a moderate, but other Court watchers have a different take. Harvard law professor emeritus Laurence Tribe writes: “I wouldn’t call Chief Justice Roberts a ‘sly extremist,’ but he’s anything but a moderate. He’s very far right on voting rights, equal protection, money in politics, religious establishment, reproductive liberty, labor relations, corporate power, regulatory authority, you name it.”
The Roberts Report hardly nodded to the hyper-politicization of his colleagues, but instead stressed judicial independence and conflicts of interest.
The Roberts Report contends that the Court’s independence can best be preserved if reforms come from the judiciary itself, not Congress or the media. “Decisional independence is essential to due process,” he wrote, “promoting impartial decision-making, free from political or other extraneous influence.”
But there must also be “institutional independence.” The judiciary must be able to clean its own house. He writes: “The Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co- equal branch of government.”
But can the judiciary credibly police itself? Or, put simply, would Roberts put the fox in charge of the henhouse?
For example, there are “judicial canons of ethics,” which Roberts proposes be strengthened. In the Report, Roberts cites a Wall Street Journal investigation, concluding that between 2010 and 2018, 131 federal judges participated in a total of 685 matters involving companies in which they or their families owned shares of stock.
That breached a federal ethics statute, which requires that a judge recuse in any matter in which the judge knows of a personal financial interest, no matter how small. Roberts, while claiming to take the matter “seriously,” is quick to point out that the 685 instances uncovered by the Journal represented a “very small fraction” of the 2.5 million civil cases filed in the federal courts during the nine-year period. Still, he sees the need for “more rigorous” ethics training programs — “more class time, webinars, and consultations” for federal judges. Cleaning the judicial stables, he argues, falls to the judiciary.
But Roberts fails to point out something which he knows well. Justices of the Supreme Court are exempt from all the ethics rules. Title 28, United States Code §455 provides that a “judge of the United States” shall disqualify himself in any “proceeding in which his impartiality might reasonably be questioned.” This is declaratory of the centuries-old common law rule that “no one is a judge in his own cause.” But the statute defines “judge of the United States” to exclude Supreme Court justices. Why are Supreme Court justices different from all the other judges of the United States? It is unlikely that the Judicial Conference will touch it. Reform, if there will be any, will have to come from Congress.
The iconic Oliver Wendell Holmes scoffed at professional canons of ethics. He argued they were designed for the “bad man” who needed to know how many corners could be cut without violating the law. Good men will always do the right thing out of probity or moral instinct. “If you want to know the law and nothing else,” he wrote, “you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”
While the Court is not bound to “follow the election returns,” it must be mindful of public confidence. The more partisan its opinions, the more questionable its ethics, the less likely is the public to abide by its decisions. And it knows it is without an army, and without a budget to enforce them anyway. The most recent Gallup poll found that the Court’s approval rating is down to 40 percent, a new low.
There is a certain arrogance in Supreme Court decisionmaking. Justice Robert Jackson summarized it perfectly. Remarking on the Supreme Court in his separate concurring opinion in Brown v. Allen, he famously quipped, “We are not final because we are infallible, but we are infallible only because we are final.”
James D. Zirin, a former federal prosecutor in the Southern District of New York, is the author of “Supremely Partisan,” a book about the Supreme Court.
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