Bench Memos

Aron-neous Ethics

In an op-ed in today’s Washington Post, in support of a call for an ethics code for Supreme Court justices, Nan Aron of the Alliance for Justice takes some more cheap whacks at Justice Scalia and Justice Thomas for supposedly “appearing at political strategy conferences hosted by the conservative Koch brothers.”

As I have pointed out, according to the Supreme Court spokeswoman’s account (at the end of this article), Scalia spoke about international law at a Federalist Society dinner sponsored by Charles and Elizabeth Koch in January 2007 “and did not attend the separate political and strategy meeting hosted by the Kochs.” Thomas spoke about his autobiography at a similar Federalist Society dinner sponsored by Charles and Elizabeth Koch in January 2008. Thomas then made “a brief drop-by” at “one of the separate Koch meeting sessions” but “was not a participant.”

Rather than acknowledging and disputing the Supreme Court spokeswoman’s account, Aron simply hides it from her readers and distorts the facts to serve her purposes. Moreover, she relies on Koch materials describing their January 2010 meeting as the sole basis for her conclusion that the January 2007 meeting (which Scalia did not attend) and the January 2008 meeting (at which Thomas made only a “brief drop-by”)  were “transparently political.”

For what it’s worth, Aron is also wrong to state that the Supreme Court “is not subject to mandatory ethics requirements.” The justices are, for example, subject to the disqualification rules of 28 U.S.C. § 455.

Further, whatever the merits of having the Code of Conduct for United States Judges formally apply to Supreme Court justices—I’ve formed no opinion on that question—Aron is fooling herself and her readers if she believes that the vague standards (e.g., “avoid impropriety and the appearance of impropriety”) and undefined or ill-defined terms (e.g., “political activity”) in the Code of Conduct would somehow provide much clearer guidance as to what actions are permissible or impermissible. (Indeed, Aron herself states that the Code of Conduct “doesn’t frown on ideological activity but does prohibit political activity.”)

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