Chief Justice John Roberts rang in the new year as modern chief justices always do, by delivering his annual report on the federal judiciary. As Roberts has done in several previous years, his report focused almost exclusively on a single topic — the many, many ethical questions raised this year about several of the justices’ behavior. Roberts — who, to his credit, has not been caught engaged in any of the same ethical shenanigans as three of his fellow conservative justices — defends some of his colleagues’ actions in his report, and he is not entirely wrong in many of his defenses. Nevertheless, Roberts’ argument is hardly airtight in many places, and it can easily be read as a threat against lawmakers who justifiably believe the Supreme Court has overstepped its ethical bounds and must be reigned in.
Roberts Is Probably Right About Recusal
Most commentators have focused on a single line in Roberts’ report: “I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” and this line almost certainly refers to calls for Justices Clarence Thomas and Elena Kagan to remove themselves from the Affordable Care Act litigation. It is certainly helpful that Roberts is now the second leading Republican to reject the Affordable Care Act’s opponents’ thinly veiled attempt to rig the lawsuit challenging this law by whining that left-of-center Justice Kagan needs to recuse herself. Likewise, although the case for Justice Thomas’ recusal is far less frivolous, it depends upon evidence that Thomas’ wife is currently earning substantial income to try to get health reform repealed. Until such evidence emerges, there is no way to prove that Thomas must remove himself from the case.
A Thinly Veiled Threat?
Roberts’ report defends his colleagues’ ethical behavior, but it also includes several pointed reminders that the Supreme Court does not believe itself to be powerless if elected officials are not satisfied by Roberts’ defense. Roberts points out, correctly, that the Supreme Court is created by the Constitution, but lower courts are created by Congress. As such, Congress has more authority to regulate the conduct of lower court judges then they do the justices themselves. The chief justice also hints several times that, should Congress enact new ethical laws regulating the Supreme Court, the Court will bite back.
He notes that the Judicial Conference of the United States, which writes many of the ethical guidelines for lower court judges, has “no mandate to prescribe rules or standards” for the Supreme Court. He points out that “[t]he Court has never addressed whether Congress may impose” financial disclosure requirements on the justices. And he adds that “the limits of Congress’s power to require recusal have never been tested.” Roberts never comes out and calls congressional regulation of the Supreme Court unconstitutional — indeed, he notes that his “judicial responsibilities preclude [him] from commenting on any ongoing debates about particular issues or the constitutionality of any enacted legislation or pending proposals.” Nevertheless, it is tough not to read his report as a warning that his Court may be prepared to nullify any attempt to tighten the ethical rules guiding its members.
Caesar’s Wife No Longer Lives At The Supreme Court
Ultimately, however, if Congress does decide to trigger a constitutional showdown over Supreme Court ethics, Roberts should look to his own conservative colleagues first in deciding who to blame. Justices Antonin Scalia and Samuel Alito’s participation in conservative political fundraisers is both inappropriate and contrary to the ethical guidelines that Roberts calls the “starting point and a key source of guidance for the Justices.” And nothing can excuse Thomas’ many ethical lapses. Among other things, the tens of thousands of dollars in gifts Thomas received from wealthy benefactors are difficult to distinguish from a very similar gifting scandal that forced Justice Abe Fortas off the Supreme Court in 1969.
Fortas was a liberal justice, and he served under liberal Chief Justice Earl Warren — just as Thomas is very conservative and serves under conservative Chief Justice Roberts. Yet the parallels end there. When the full breadth of Fortas’ gift-taking came out, Warren did not just write a report defending the Supreme Court’s right to police it’s own ethics — he policed those ethics himself by helping push Fortas off the Court.