Supreme Court of … the Highest Bidder

February 10, 2011

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Like most young children growing up, at some point I learned about government.  I learned about the three branches of government – executive, legislative and judicial.  I learned that the role of the judicial branch is to interpret the law and apply facts and the law to each case that comes before it.  Sometimes there comes a case before a judge where the judge or a direct relation or friend of that judge has a stake in the outcome.  To avoid favoritism a judge will normally disqualify themselves from a case where there is a conflict of interest and this is called recusal.  Sandra Day O’Connor routinely recused herself from cases involving telecommunication industries because she owned large amounts of stock in those firms.

I figure that it’s fairly routine to do this; Elana Kagan did so in a recent case involving workplace law and harassment due to her previous work as Solicitor General and the law in question on that case wasn’t even signed when she held that job.  So here’s a little scenario for you:  You’re a supreme court judge, and your spouse has accepted almost $700,000 from firms standing to gain quite a bit by the Citizens United ruling, do you recuse yourself from the case?  Not only did Clarence Thomas not recuse himself from that case, he had routinely checked “no” on ethics forms that require him to disclose if his spouse received noninvestment money.  Is he required by law to disclose this?  No, but what’s the point of having ethics forms if you lie on them?  Heck, if we have Supreme Court Judges lying on ethics forms, why bother even having a court?

Well, there’s a case on the horizon looming, pretty much everyone knows it’s coming:  Obamacare vs. Virginia and Florida will be in the supreme court before too long, possibly scheduled by the end of this year.  Virginia Thomas, Clarence’s wife, has done quite a bit of work the past decade for companies that have been outspoken against the new health care law, and there is already a movement going to demand Thomas’ recusal for when this case finally comes about.  Don’t hold your breath on that one.

The last few decades have seen Supreme Court justices acting more and more like they’re Teflon, like they can get away with anything and as long as they claim impartiality they’re fine.  Antonin Scalia has his own list:  going on a hunting trip with Dick Cheney weeks before a case involving Cheney was heard in the Supreme Court, speaking at a Tea Party rally organized by Michelle Bachmann, and most recently Scalia and Thomas were guests at an invitation-only gathering fully paid for by the Koch brothers.

How do we solve a problem like Scalia?  Once again, transparency.  The Supreme Court is not a get-away-with-whatever club where once you join you get to toss your code of ethics (if you ever had one) out the window.  The whole point of that office in the first place was to interpret the law with as much impartiality as is humanly possible and two members in particular are turning it into their own personal gain machine.  Second, we need to start limiting the terms of justices, or at the very least have some sort of re-confirmation every number of years.  If it’s ludicrously rare for anything more than a slap on the wrist to come down on Supreme Court justices in terms of punishment and they’re starting to show themselves as not being ethical enough to be above greed or partisanship we need to show them that they’re replaceable.

3 Comments (+add yours?)

  1. Evan
    Feb 10, 2011 @ 08:59:33

    It’s really disheartening to see reports like this. In PA, where I live, judges are elected, and there is a push to change that to “merit-based.” I’m not sure that is any better, though, given some of the examples in your post.


  2. kosmo
    Feb 10, 2011 @ 09:22:35

    In Iowa, voters choose to retain or remove judges. Last year, three state supreme court justices were removed after a very strong campaign against them. Why? They had joined a unanimous decision that ruled that a state ban on same sex marriage violated the state constitution. Sandra Day O’Connor advocated retaining the justices, in the interests of judicial independence (the thought being that judges should be comfortable making unpopular decision that they truly believe are the correct decision). Unfortunately, the PAC that chose to politicize the process won and the justices lost.

    There should be a way to make the judicial system completely independent of the other branches, but I’m not sure how.


  3. Martin Kelly
    Feb 10, 2011 @ 09:50:48

    Zarberg, I cannot argue with anything you have written. The sad this is that this is not a new problem, and not just on the right. During the Nixon impeachment, several justices sat down with congressional leadership to get the wording on the impeachment papers just right, only justices appointed by Lyndon Johnson. During the Reagan years, there were at least two justices associated with Planned Parenthood who sat for the Parental Notification for Abortion case from Pennsylvania. Reading the transcripts, it is sometime hard to separate the justices from the avocates arguing the cases, and this is throughout our history.

    Evan & Kos, I have lived in Texas where the judges are elected and in Iowa where they are appointed by the governor and then voted on to retain by the people. Both systems have their own problems. In the election, there are definate political undertones, and there is no consistancy in decisions. With the appointment system in Iowa, you have situations like the last election where people get riled up over a single descion instead of weighing the overall capabilities of the judge. I believe that we need to have some check on appointents, because no mater how hard you try, these choices end up being political.

    In some ways, I would like to see justices appointed for a specific term, kind of like the chairman of the federal reserve. This would allow for corrections of political appointees and get some of the really old judges to retire rather than die in office. If you have a really good justice, you can always appoint him/her to another term. Probably problems with this method as well, but nothing is perfect.


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