Supreme Conflict

By: Stephen Spaulding

November 13, 2013

Justice Clarence Thomas will headline a black tie fundraising dinner tomorrow evening for The Federalist Society, which describes itself as “a conservative and libertarian intellectual network that extends to all levels of the legal community.” Its purpose includes “reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law.” Joining Justice Thomas onstage and as a speaker will be Judge Diane Sykes of the U.S. Court of Appeals for the 7th Circuit.
By appearing, Justice Thomas and Judge Sykes will violate the Code of Conduct for United States Judges – although the Code of Conduct does not bind the Supreme Court. More on that point later.
Today, Congresswoman Louise Slaughter of New York, Common Cause and the Alliance for Justice filed a formal complaint with the Seventh Circuit Court of Appeals against Judge Sykes and sent a letter to Chief Justice Roberts requesting that the Supreme Court adopt a formal Code of Conduct.
At the outset, I should make it clear that there is no ethical lapse when Justices of the Supreme Court appear before legal organizations like the Federalist Society, irrespective of the organization’s ideological bent. If anything, members of the Court should be encouraged to engage with the public and legal organizations of all stripes, rather than remain cloistered and isolated from civil society.
The problem occurs when members of the judiciary – sworn arbiters of impartial justice – are featured as speakers at fundraisers that advance the private interests of their sponsors.
The Code of Conduct covers this concept. Specifically, Commentary to Canon 4(C) states that “[a] judge may attend fund-raising events of law-related and other organizations although the judge may not be a speaker, a guest of honor, or featured on the program of such an event.”
The Federalist Society’s annual dinner coincides with its annual convention and is clearly a fundraiser. For at least the past two years, the dinner program booklet included a long listing of corporations and law firms that the Federalist Society “gratefully acknowledge[d]” for “their generous support of the annual dinner.” “Gold sponsors” in 2012 and 2011 included Chevron Corporation, Pfizer, and Verizon, while “silver sponsors” included Time Warner, Inc., Facebook and PepsiCo, Inc. While most of the convention takes place at the Mayflower Hotel, the separately ticketed annual dinner occurs at a much larger venue a couple of miles away.  It has been sold out for days. Attendees for the past few years have included more than 1,200 lawyers, lobbyists, Members of Congress and other guests. This year, the price of admission is $200.  Justice Thomas’ and Judge Sykes’ photographs appear on the website selling the tickets.
Justice Thomas has a long history of flouting the Code of Conduct. In 2011, on the very day that the Supreme Court met in conference to decide whether to hear the Affordable Care Act cases, he joined Justice Antonin Scalia in headlining the Federalist Society’s 2011 annual dinner. The event was billed as a “celebration of service” for their time on the bench.
Other justices have been featured guests and speakers at previous annual dinners. The 2012 fundraiser featured Justice Samuel Alito, 2011 featured Justice Thomas and Scalia, 2010 again featured Justice Scalia, and 2009 featured Justice Alito.
Justice Thomas has traveled on the Federalist Society’s dime, too. Four years ago, Justice Thomas disclosed that the Federalist Society reimbursed him for an all-expenses paid trip to Palm Springs, California for a “speech.” As the New York Times reported, Justice Thomas’s visit coincided with “a political retreat for wealthy conservatives” that was “organized by Charles and David Koch,” the billionaire industrialists and benefactors of libertarian causes, and took place over the same span of days. A spokeswoman for the Supreme Court confirmed that Justice Thomas made a “brief drop-by” at the Koch retreat “and had given a talk.” Meanwhile, the Washington Post reported that the Federalist Society had “no meetings of its own at the venue,” and quoted the Society’s President Eugene Meyer as saying that they “‘knew the justices were going to be out there [in Palm Springs],’ and would be interested in hearing what they had to say.”
Common Cause asked the Federalist Society to disclose whether any separate Federalist Society events took place over those four days in 2008 in Palm Springs, but never received a response. (Justice Scalia also disclosed that the Federalist Society paid for his trip to the vicinity in California one year earlier. Think Progress released documents from Koch Industries about previous meetings, which advertised that they had “featured such notable leaders as Justices Antonin Scalia and Clarence Thomas”).
Justice Thomas also failed to disclose more than $680,000 that his wife, conservative activist Ginni Thomas, received in compensation from the Heritage Foundation.  After Common Cause drew attention to this matter, he quickly amended several back-years of disclosure forms, blaming his mistake on a “misunderstanding of the filing instructions.” Congresswoman Louise Slaughter, joined by 52 fellow Members of Congress, sent a letter to the Judicial Conference of the United States, requesting a referral to the Attorney General for an investigation after it was learned that Ms. Thomas was paid $1.6 million during the years Justice Thomas checked the “none” box for spousal income on his annual forms.
Our highest court should meet the highest ethical standards.  Although the justices are the only judges not bound by a formal, transparent code of ethics, the Supreme Court has publicly agreed to abide by its principles and could formally adopt a transparent code at any time. Chief Justice John Roberts dedicated his 2011 Year-End Report to the topic, stating that the Code of Conduct for U.S. Judges “plays the same role” for the Supreme Court as it does for the rest of the federal judiciary. He wrote that “Members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations” and “are all deeply committed to the common interest in preserving the Court’s vital role as an impartial tribunal governed by the rule of law.” Justices Anthony Kennedy and Stephen Breyer have said this, too.
Clearly, however, nothing has not stopped some members of the Court from repeatedly offending Canon 4(C)’s prohibition on headlining fundraisers for private organizations. And there’s nothing binding. That’s why we filed a formal complaint against Judge Sykes – who is bound by the Code – and a letter to Chief Justice Roberts, urging adoption of the Code.
Common Cause commends Congresswoman Louise Slaughter and Senators Murphy, Blumenthal and Whitehouse for their leadership on this issue. They have introduced the Supreme Court Ethics Act of 2013 – bicameral legislation that would require the Court to promulgate a code of ethics that includes the 5 canons of the Code of Conduct, with any amendments the Court determines to be appropriate. This is an important action showing that transparent ethics and accountability matter, and that the Supreme Court should be held to the same ethical standards as everyone else.
Our democracy will be stronger for it.
For more on Common Cause’s work on Supreme Court ethics, you will find more resources here and from the Alliance for Justice here