Bench Memos

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Ethics, Politics and the New York Times


I’ve had ample occasion to expose the mendacity, inanity, and confusion that have pervaded recent New York Times house editorials on the Supreme Court and ethics, and I’ll confess that it’s rather tedious to do so yet again, but I gather that there are some people who still take NYT house editorials seriously, so here goes:

The NYT’s lead house editorial today charges that “in several instances [this past term], justices acted in ways that weakened the court’s reputation for being independent and impartial,” and it cites rulings that it alleges “raise the question of whether there is still a line between the court and politics.” It argues that the “justices must address doubts about the court’s legitimacy by making themselves accountable to the [C]ode of [C]onduct [for United States Judges]” (which currently applies only to lower-court judges).

Let’s address the editorial’s claims:

1. As the sole support for its charge that that “in several instances, justices acted in ways that weakened the court’s reputation for being independent and impartial,” the editorial states:  “Justices Antonin Scalia and Samuel Alito Jr., for example, appeared at political events.”

Let me translate this out of the Stalinist dialect. When the NYT says that Scalia “appeared at [a] political event[],” it is referring to Scalia’s speaking on the topic of separation of powers at an event organized by a formally recognized caucus of the House of Representatives—the Tea Party Caucus—and open to all members to attend. As the reports from liberal Democratic members who did attend Scalia’s talk show, there was nothing remotely political or partisan about the event.

The charge against Alito evidently relates to his attending a fundraising dinner for the conservative American Spectator. The Code of Conduct’s prohibition on “political activity” (Canon 5) states that a judge “should not … attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate,” and it specifically defines “political organization” to mean “a political party, a group affiliated with a political party or candidate for public office, or an entity whose principal purpose is to advocate for or against political candidates or parties in connection with elections for public office.” So it’s clear that the American Spectator is not a “political organization” under Canon 5, and there’s no reason to believe that Alito’s attending the dinner would otherwise qualify as “political activity” within the meaning of that canon (or that the dinner was a “political event” as that phrase would ordinarily be understood).

It’s also noteworthy that the NYT, so far as I’m aware, has never objected to far more problematic behavior by liberal justices.

2. Here’s a telling illustration of the NYT’s routine dishonesty: The editorial states (emphasis added):

Among the court’s 82 rulings this term, 16 were 5-to-4 decisions. Of those, 10 were split along ideological lines, with Justice Anthony Kennedy supplying the fifth conservative vote.

The hyperlink (not available in the print edition, of course) instructs the reader, “See p. 11, SCOTUSblog Stat Pack.” Any reader who follows the link will discover that 14 of the 16 decisions “were split along ideological lines,” with Kennedy supplying the fifth liberal vote in four of the cases. But the NYT instead gives the false impression that the conservative side won all the 5-4 cases decided “along ideological lines.”

3. The editorial cherry-picks (and tendentiously characterizes) five rulings that it claims show “the conservative majority further expanding the ability of the wealthy to prevail in electoral politics and the prerogatives of businesses against the interests of consumers and workers.” But as Jonathan Adler has shown, “[t]hese cases … are hardly representative of the Court’s business-related docket this past term, nor are they representative of the Court’s overall performance in business-related cases.” To quote Jonathan further: “As this term’s First Amendment cases show, it’s not that the Court has a particular fondness for corporate speech, so much as it is a Court with a highly speech-protective majority.” (Typo in original corrected.)

In sum: While the New York Times purports to be concerned about the Court’s “legitimacy,” its own reckless attacks on conservative justices reveal its highly partisan agenda. Nor does the NYT identify any problem that would be helpfully addressed by formally applying the Code of Conduct to the justices.


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