As members of the United States Supreme Court, Justices Antonin Scalia and Clarence Thomas are not technically bound by the "Code of Conduct for United States Judges." Still, it is considered appropriate for them to uphold the principles of the ethics code that is binding on all other U.S. Federal District and Appellate judges. At the least, they are widely expected not to be blatantly contemptuous of those standards. Alas, they apparently can't be bothered with the ethical standards that govern federal judges a rank of two beneath themselves.
That was again made appallingly clear last Thursday. That's when they met with their Supreme Court colleagues to consider whether to officially review the constitutionality of the nation's landmark health care reform. After hours of deliberation on the challenges to the sweeping reform law by 26 Republican-governed states, they agree to hear the lawsuit -- a decision the court officially announced Tuesday. They considered it such an important case that they booked a record 5.5 hours for the arguments next March on the case, which many analysts believe will roil the presidential election currents when the court's decision is delivered in June.
And a few hours later last Thursday, they appeared as honored guests and principal participants at the annual dinner of the Federalist Society, an arch conservative group whose members and sponsors vociferously oppose the reform act, including some that are active participants in arguing or funding the lawsuit against it.
The dinner, the program prominently noted, was sponsored by five corporations, including Pfizer Inc., the giant pharmaceutical company with a huge stake in the outcome of the lawsuit. Another listed sponsor was Bancroft PLLC, the law firm of Paul Clement, who was seated nearby the justices, and who will stand before the court and make the plaintiffs' argument against the health care reform act.
Justices Scalia and Thomas were not merely guests at the dinner. Though they have long attended Federalist Society dinners, they were especially honored at Thursday's event. As the program for the dinner highlighted, Justice Thomas was introduced by C. Boyden Gray, a prominent member of prior Republican administrations. Justice Scalia was introduced by former U.S. Attorney General Edwin Meese II, who is now with the conservative Heritage Foundation.
If a lower-ranking federal judge had attended that dinner, or been such a guest of honor, he or she would have been in violation of the Code of Conduct for U.S. Judges. The pertinent part of the Code 4C says: "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." (Emphasis ours.)
Attorneys may not openly criticize high court justices, but others will. Bob Edgar, president of Common Cause, a respected nonpartisan, public advocacy group, offered justifiably harsh criticism. "This stunning breach of ethics and indifference to the code belies claims by several justices that the court abides by the same rules that apply to all other federal judges," he said.
Neither justice seems to care. In fact, Justice Thomas has yet to recuse himself from any cases connected to his wife's lucrative lobbying business. He also has attended -- and claimed expenses for -- a four-day retreat at a posh Palm Springs spa sponsored by the conservative megabillionaire Koch brothers.
The retreat was one in a regular semi-annual series (Justice Scalia has also attended) sponsored by the Koch brothers to consider strategies by wealthy and influential Republican donors to counter "climate change alarmism and the move to socialized health care ... (and) the regulatory assault on energy" and progressive taxes on the super wealthy.
Small wonder Scalia and Thomas were ready supporters last year of the Citizens United ruling, which endowed corporations and unions as essentially super-citizens -- above the campaign finance laws that apply to real human beings in American -- and gave them the right to freely use corporate and union money without limits or restrictions to elect or defeat political candidates.
The justices' blatant embrace of politically and ideologically charged organizations and corporatist policies undermines the appearance -- indeed, the hope -- of impartiality and taints their judicial rulings beyond any conscionable limit. Unfortunately, absent their own conscience, there is nothing to restrain them, or to ensure impartial rulings in behalf of social justice for the nation.