A court without a code

In the wake of the U.S. Supreme Court’s Monday announcement that the robed brethren will likely rule on the constitutionality of the health reform law in the midst of the 2012 presidential campaign, it’s well worth noting that even these ostensibly neutral arbiters are getting hammered in the opinion polls.No doubt the justices believe that their anticipated summer ruling will be the last word on the contentious issue, and that the traditional respect accorded to their institution will lend their words great weight. But the problem is, they’re not getting much respect these days. Gallup says that only 46 percent of Americans view the high court in a favorable light, a 15-point drop over the past two years and the worst approval rating of the past decade (with the sole exception of a brief downtick in mid-2005).Gallup doubts that any particular rulings have precipitated the plunge; rather, it believes that the bad numbers are symptomatic of “the broader decline in Americans’ trust in government in general,” and that’s probably true, since I question whether most people sit around parsing the fine points of even then most controversial rulings, like the January ’10 doozy Citizens United, which opened the floodgates for anonymous fat-cat campaign donations.But I bet the current approval rating would be even lower if most Americans knew that the highest court in the land has no ethical code. Yes, folks, the nine supremes exempt themselves from the conflict-of-interest rules that guide all other federal judges. According to the Code of Conduct for United States Judges, “An independent and honorable judiciary is indispensable to justice in our society,” which is why the code bars federal judges from engaging in any conduct that undercuts their independent impartiality – and, more importantly, is perceived to undercut their impartiality. But our nine most important federal judges are not bound by this code. Instead, they operate on the honor system (in other words, no system). Which is why Antonin Scalia had no qualms about voting on a Wal-Mart gender bias case even though his son is a labor specialist at the law firm that represented Wal-Mart. Which is why Scalia and Clarence Thomas had no qualms about attending political retreats hosted by conservative financier Charles Koch, who wanted to ease the laws curbing big money in politics…prior to the justices’ participation in Citizens United. Scalia and Thomas voted to ease the laws curbing big money in politics.And this absence of an ethics code is particularly pertinent at the moment, due to the early skirmishing over the health reform law. To borrow a sports phrase, partisans on both sides are already trying to work the refs. Groups that support the health reform law contend that Thomas has a conflict of interest, that he should recuse himself from the case because his wife is a prominent tea-party activist who has earned at least $165,000 from groups that have fought and lobbied against the law. Meanwhile, groups that oppose the law contend that Elena Kagan has a conflict of interest, that she should recuse herself from the case because she previously served as Barack Obama’s solicitor general (the government’s top litigator) during the ’09 congressional battle over health reform.It’s possible to rebut both contentions. Yes, Kagan appears to have voiced sympathy for health reform while serving as solicitor general – as health reform neared congressional passage, Kagan reportedly emailed a Harvard professor, “I hear they have the votes, Larry!! Simply amazing” – but there’s no evidence she engaged in any substantive legal strategy sessions. And, more broadly, it’s very common for judges to have previously worked (often as legislators) on issues that ultimately wind up in their court.An argument can be made for Thomas well. Yes, the ethics guidelines typically discourage judges taking part in rulings on which they might have a material interest – and Thomas took his own sweet time before finally filing the disclosure reports that revealed his wife’s tea-party earnings – but one can just as easily contend that her earnings are beside the point, that he and the missus are simpatico precisely because they have long shared the same ideological convictions. As Thomas said of his marriage not long ago, during a talk at the University of Virginia law school, “We believe in the same things.”My point, however, is that there’s no way to truly assess the pros and cons of Thomas and Kagan without the criteria of an ethics code. Neither judge will sit out the health reform ruling, of course, and the activist groups on the left and right know this anyway. They’re merely positioning themselves to unfavorably spin the ruling if it goes the other way. If health reform is upheld, conservatives can blame it on Kagan for refusing to recuse herself. If the law is struck down, liberals can blame it on Thomas for refusing to recuse himself.Whatever the outcome on health reform, it may well prove to be the most controversial and polarizing decision since Bush v. Gore. Given the current public distrust of the high court, it’s likely that the word from the brethren will further inflame partisan passions – and signal not the end of the debate, but merely a new beginning.——-Follow me on Twitter, @dickpolman1