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Politicians in Robes

In this issue of Chicago Life, we are citing people and organizations increasingly concerned about impartiality within the judicial system. One of these is an article on Supreme Court Justice Sandra Day O’Connor’s address at Elmhurst College a few months ago where she expressed concerns about the impartiality of our judiciary. She fears  that the judiciary is at risk—especially at the state level. She expressed concern that money and influence are enemies of that legacy, a legacy rooted in the United States Constitution.
Justice O’Connor argued that, while Federal judges are still appointed for life by the President and confirmed by Congress—and therefore are less of an issue—cases still tend to be judged on their legal merits rather than their popularity, influence or wishfulness. But at the state level, many judges are elected in an atmosphere of money and influence, their independence and impartiality—in impression and sometimes in fact—are therefore uncertain, citing instances where judges did not recuse themselves from cases despite conflicts of interest. She expressed a concern for an erosion of confidence in the impartiality of our judiciary and the reasonable expectation of impartiality before the law, with the public beginning to view our state level judges as “politicians in robes.” She added, “in some states, perhaps that’s what they are.”
Justice Ruth Bader Ginsburg also recently said that the “[Supreme]  Court’s current activism often feels like the result of politics rather than law,” according to Jeffrey Toobin in his interview with the Justice in The New Yorker.
On a Federal level, Supreme Court Justices should not attend political social affairs if the sponsors have political or judicial interests. How has this come to be acceptable? Our judges should create no appearance of political affinity if they are to be truly unbiased.
Two Supreme Court Justices have been speaking at political fundraisers attended by the energy industry and Big Money, with personalities such as Glenn Beck and Rush Limbaugh sometimes in attendance. Justice Clarence Thomas spoke at a political retreat in 2011 and was reimbursed by the Federalist Society—the prominent conservative legal group—for a four-day all-expenses-paid trip to Palm Springs. The hosts of several of these social political strategy sessions have boasted of the Justices’ attendance at their political events.
According to the Huffington Post, professor of law at New York University Stephen Gillers said, “I know I would be curious to know exactly what forums the Justices went to. Obviously they could not go to a strategy session about how to elect more Republicans. On the other hand, if it was a forum on the meaning of the First Amendment and it didn’t involve strategy or fundraising, a Justice could appear.... It’s fascinating and it merits more reporting.”
Common Cause, the nonpartisan citizens’ organization that promotes honest and accountable government,  has continued to press the Supreme Court to abide by a code of ethics, however, and the Court has declined to do so.
What is puzzling is how the not-for-profit group “Groundswell,” headed by the spouse of a Supreme Court Justice, Ginni Thomas, seems to skirt the appearance of impropriety. This group, according to writer Mary Boyle, strategizes on political issues that may come before the Supreme Court—voter ID, immigration and the sequester as well as promoting “politically useful scandals.”
According to Mother Jones, Groundswell meets weekly to “plan a 30-front war seeking to fundamentally transform the nation.” This agenda certainly creates the appearance of impropriety.
Spouses of elected officials share a right to have their own professional lives. The problem is that there is no binding code of ethics or rules when issues come up that may eventually reach the Supreme Court. One of these issues was when the Court was deciding on Citizens United, arguably creating a problem of conflict of interest for Justice Thomas when his wife was, according to Common Cause, “running a conservative nonprofit that was ‘fighting the ‘tyranny’ of President Obama that directly benefited from removing limits on corporate and union spending on politics. That was clearer cut because Ginni Thomas benefitted financially from the Citizens United decision.”
Ginni Thomas’s earnings as a lobbyist over the past 13 years added up to $1.6 million, according to U.S. News & World Report.

But how much do justices get paid for their service? According to uscourts.gov, Circuit Judges earn $184.500. District Judges earn $174,000, Associates Justices earn $213,900 and Chief Justices earn $223,500. These salaries appear to be reasonable when their earnings are compared to the earnings of the average citizen. Corporate CEO’s earn on average, vastly more. Could justices identify with the average citizen if the amount were more sizable? Can lower court justices make unpopular decisions if they have been elected in popularity contests? Arguably, it would be difficult.
Mother Jones obtained Groundswell memos that dealt with blocking gun violence prevention efforts, election reform and marriage equality. These issues have been actively pursued in the courts. Justices who have personal involvement with these issues should recuse themselves from serving on the court for those decisions if their family members are politically-paid activists.
Huffington Post made a point that there are larger concerns about judicial independence. “I think it is very important for judges to be part of the real world and appear in public for educative purposes to help explain the arcane mysteries of the court to the general public,” said William G. Ross, a judicial ethics professor at Samford University’s Cumberland School of Law in Birmingham, AL, “That is very healthy and I don’t think that judges should isolate themselves in a marble palace... However, I am very troubled by the tendency of judges to make broader comments on public issues and to appear in public or private gatherings in which there are political overtones."

Published: October 12, 2013
Issue: November 2013 Issue