The Temptations of the Supremes

by John Lawrence

Few features of congressional ethics rules exasperate Members of Congress more than the rigid guidelines governing the receipt of virtually anything of value from virtually anybody on the planet. Members live in fear of violating some hazy guideline or obtuse restriction and ending up doing the career-ending perp walk over to the dungeon-like offices of the Ethics Committee.

Since the 1970s, Congress has imposed increasingly rigid constraints on accepting gifts or even meals. From time to time, the restrictiveness can seem inane. Members (and staff) can attend receptions at which hors d’oeuvres are served while standing, but cannot attend a sit-down meal; lobbyists cannot buy even a cup of coffee for a staffer or Member; even gifts from longtime friends might have to be reported. One rejected “reform” proposal would have required Members to wear body cameras to record everyone who spoke with them during the day.

Not that there aren’t good reasons for the kinds of restrictions enacted in the Honest Leadership-Open Government Act of 2007. The preceding year, the Republican leadership of the time, particularly Majority Whip Tom Delay (the power-behind-the-throne of Speaker Denny Hastert) was widely accused of maintaining too cozy relations with lobbyists. One report even asserted that DeLay, who later left Congress under a hail of criminal allegations, allowed lobbyists to operate legislative drafting sessions in the Whip’s office.

Democrats unleashed an unusually effective attack on Republicans, accusing the majority of fostering a “culture of corruption” in the House and Senate. The news media relentlessly echoed the characterization, which Democrats rode to a victory that returned control of both houses of Congress to their control in 2006. Within 100 hours of assuming the chair, Speaker Nancy Pelosi rammed through her entire list of reform bills, including Honest Leadership-Open Government. Public confidence in Congress has since soared.

Well, maybe not, but the charges of corruption have certainly dissipated. However inconvenient or unfair, most Americans agree that there needs to be tight restriction against public officials taking gifts from those with business before them. Which is why it is so curious that comparable constraints do not apply to Supreme Court justices. Those nine paragons of virtue are not covered by any statue or regulation that prevents their acceptance of valuable gifts from benefactors and friends, even those who might have business before the Supreme Court.

Supreme Court justices, like other members of the federal bench, have long been rankled by the fact that their salaries, by law, are linked to the salaries of Members of Congress, who are so notoriously concerned about being criticized for raising their salaries that they negate the automatic raises federal law already grants them. As a result, federal judges also lose their raises, leading members of the judiciary, including Supreme Court justices, to periodically engage in very injudicious lobbying. Congress will not budge on the linkage, and perhaps that is one reason the justices have preserved their special exemption from gift laws that apply to junior legislative assistants.

When I heard last month that Antonin Scalia had died at a Texas hunting lodge, I have to admit I immediately Googled the place to see what the rates were. (Several hundred dollars a night, in case you are thinking of doing some hunting.) I have no doubt Scalia made enough money to afford an occasional domestic safari, but my first thought was: I wonder if someone else was paying his way.

Well, as it turns out, someone was. The trip was underwritten by a 400 year old hunting society known as the International Order of St. Humbertus.   The lodge where Scalia died was owned by society member John Poindexter, who also picked up the tab for 34 other guests who got to hob-nob with Justice Scalia, including C. Allen Foster, a big-time Republican lawyer who has represented the GOP in redistricting cases and defended such stellar companies as Blackwater. (Foster describes his “passion” as “killing things,” including elephants, lions, rhinos and “more than 150,000 birds of various species.” No friend of the much litigated Endangered Species Act, Foster proclaims that “When the last duck comes flying over with a sign around his neck [saying] ‘I am the last duck,’ I will shoot it.”)

There are rules governing gifts to members of the Judicial Branch, but they do not apply to the Supreme Court justices. However, the Judiciary’s own ethical code declares that a judge “should “avoid impropriety and the appearance of impropriety in all activities.” Presumably “all” includes hunting at private ranches courtesy of those who could likely be connected to issues before your court. Still, in 2011, Chief Justice Roberts declared that “while [a]ll members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations … The Court has had no reason to adopt the Code as its definitive source of ethical guidance.” I wonder what standard it does impose as its “definitive source.”

Scalia’s last round-up was far from his only subsidized trip.   The New York Times reported that he admitted accepting 258 subsidized trips between 2004 and 2014. Second on the list was Steven Breyer who took 185 trips during the same period, while Anthony Kennedy clocked in third with 132. Other Justices – Roberts, Thomas and Kagan – were infrequent travelers; Sotomayor took 67 in her 5 years on the bench, Ginsbur 132 in 11 years, and Alito 83 over the same period. We know about these trips in part because Justices are required to disclose reimbursements of greater than $350.

Taking trips at someone’s expense doesn’t disqualify anybody from being a Justice, even a good Justice, but it just might stray a little close to those admonitions about avoiding the “appearance of impropriety.” True, many of the trips are to speak at law schools and other venues on weighty legal matters. Fortunately for Scalia, some of those recent venues include such unlikely locales for law students as Zurich, Ireland and Singapore.

It goes without saying that for the most part, those footing the bill for the fancy trips are those with the bucks to afford them, and to afford the lawyers needed to take cases to the Supreme Court. Often those are business interests, and in the Roberts Court, they have found a warm reception. A recent New Yorker article concluded that the Roberts Court is the second most pro-business of any in the last 70 years, limiting corporate fraud liability, restricting class action law suits and making It more difficult to win employment and gender based discrimination cases. Brian Fitzpatrick, now a Vanderbilt law professor and a former Scalia clerk, credits his former boss as leading the effort to limit lawsuits against business.

Roberts’ rationale for opposing the imposition of gift regulations on the Supremes is the tried and true “separation of powers” argument. The Constitution , he reasons, clearly gives the Congress authority to create the lesser federal courts, but specifically creates the Supreme Court as a unique branch of government. It therefore follows, opines the Chief Justice, that congressional restrictions on the Court’s autonomy would constitute an infringement on the sacred separation of powers. The Executive Branch makes a similar case in opposing Congress’ restriction on presidential power as commander in chief, as in the case of the War Powers Resolution. Even legal scholar Jeffrey Toobin asserts “Justices are allowed to have friends, and they’re allowed to enjoy the hospitality of those friends.”

Now, here’s where the problem occurs. Congressmen and women like to have friends and enjoy their hospitality, too, but they can’t. A $350 “reimbursement”? A Member of the House could find himself facing a reprimand from his or her colleagues (or worse) for accepting a cup of coffee. And yet it is to these Members of Congress that the Justices come, gown in hand, to beg for separation from the pay restrictions that tie their salaries to those of legislators. Good luck.

One of those legislators, Congresswoman Louise Slaughter of New York, the ranking member of the House Rules Committee, has been a vigorous advocate for ending the exemption from gift band for Supreme Court justices. Slaughter notes that Scalia and Thomas were “featured” speakers at numerous “closed-door political fundraising and strategy sessions hosted by Koch Industries,” and the New York Times disclosed that its investigators in 2011 had found that Thomas “may have benefited from use of a private yacht and airplane owned by Harlan Crowe, Dallas real estate magnate and major contributor to conservative causes.” Such trips would be improper if the justices abided by the Code of Conduct that Roberts assures us he believes all Justices “consult.” Perhaps the Justices should limit their freebie talks to speaking to those bar meetings and law school classes and cut out the forays to Zurich and hunting lodges.

Slaughter’s bill would “require the Supreme Court to adopt a code of ethics modeled on the code that has applied to all other federal judges for decades.” Members of Congress are unsurprisingly miffed that they, who could be held accountable by constituents for inappropriate trips, are virtually banned from taking them while justices who never face angry voters exempt themselves from similar constraints. I bet the justices aren’t lobbying Congress to pass the Slaughter bill.

Like the rest of government, approval of the Court, long a mainstay of public trust, has fallen significantly, dropping below 50% for the first time in over thirty years, it was recently reported. Many speculate that diminution of esteem is tied to the seemingly blatant intervention by justices in decisions that reflect their personal political and ideological views, like Citizens United that freed fat cat friends to spending their money uncontrollably on political campaigns, or at least spend whatever money is left after hosting Supreme Court justices to swell visits to comfy resorts. Imposing upon themselves the same restrictions that other judges and legislators must live with might not improve public attitudes towards the Court, but it wouldn’t hurt when they come seeking raises at Congress’ door.