In yesterday’s New York Times, Harvard law professor Noah Feldman offers a vigorous, admirably evenhanded, but ultimately deeply unsatisfactory defense of extrajudicial activity by Supreme Court justices. The core flaw of Feldman’s defense is that it is all history and no law. Feldman’s history is interesting and may well offer some insights into how ethical norms should be understood and applied. But it is no substitute for careful examination of those norms.
Although the reader wouldn’t know it from Feldman’s op-ed, federal statutory law (28 U.S.C. § 455) spells out the recusal obligations of federal judges, including Supreme Court justices. In addition, the Code of Conduct for United States Judges, although it formally applies only to lower-court judges, sets forth canons of ethical conduct that are reasonably looked to, at least presumptively, as a benchmark for the conduct of justices (even if one reserves the possibility that those canons might apply somewhat differently to justices).
Feldman is correct that criticisms of Scalia and Thomas are (at least if one assumes the criticisms to be in good faith) “driven by the imagined ideal of the cloistered monk-justice, innocent of worldly vanities, free of political connections and guided only by the gem-like flame of inward conscience.” But, as I’ve discussed, that “imagined ideal” is (to some extent) inapt not simply because of the history that Feldman invokes but because accepted norms of judicial ethics, embodied in the Code of Conduct for United States Judges, reject it. As the Commentary to Canon 4 states:
Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice. To the extent that the judge’s time permits and impartiality is not compromised, the judge is encouraged to do so, either independently or through a bar association, judicial conference, of other organization dedicated to the law. Subject to the same limitations, judges may also engage in a wide range of non-law-related activities.
By treating each historical incident he cites as though it established approving precedent, Feldman offers an overly expansive view of the realm of permissible activity by justices. The fact that it was constitutionally permissible for Chief Justice Marshall to remain, during his first month on the Court, Secretary of State does not mean that we must now view such dual service as ethically permissible.* Nor does Marshall’s review of his own executive-branch conduct in Marbury v. Madison mean that modern rules on recusal may be ignored. And Feldman’s suggestion that Scalia might have added into his explanation of his non-recusal in a case involving Vice President Cheney the fact that President Truman had solicited and received Chief Justice Vinson’s advice that the Court would allow nationalization of the steel mills seems astoundingly obtuse.
Those seeking to defend Scalia and Thomas from the ethical attacks being leveled against them shouldn’t adopt Feldman’s line of defense. Instead, they should insist that the existing ethical norms be applied neutrally and that the relevant facts be characterized accurately. Historical comparisons may well play some role in the process, but not the overly expansive role that Feldman would give them.
* Update: Indeed, Marshall evidently had his own concerns about the dual service. Russell Wheeler of the Brookings Institution, in an e-mail to me, adds these details:
Marshall went out of his way to make clear, once he was on the court, that he was no longer secretary of state. Jefferson as president-elect understood that when asking him to sign certain papers “as the person appointed to perform the duties of Secretary of State,” and Marshall responded by identifying himself as “not being the Secretary of State and only performing the duties of that office at the request of the President.” When he submitted his secretary of state salary requisition he requested payment only until Feb. 3, the last day prior to his official commissioning as chief justice.
It may be a distinction without a difference, but Marshall knew the distinction was important.