U.S. Supreme Court, Wikimedia Commons
The Alliance for Justice's Nan Aron writes today in the Washington Post:
The behavior of Supreme Court justices has come under increasing scrutiny. Questions have been raised, for instance, about the propriety of Justices Antonin Scalia and Clarence Thomas appearing at political strategy conferences hosted by the conservative Koch brothers. Other justices’ activities have also prompted concerns that the line between justice and politics is increasingly blurred.
Regardless of whether one shares fears of politicization, disputes are inevitable so long as the nation’s highest court operates with almost no compulsory ethics rules to guide—or constrain—behavior. The Supreme Court, whose members are shielded with lifetime appointments, is the only entity in our government that is not subject to mandatory ethics requirements. That is why reformers are calling for the Code of Conduct that governs all other federal judges to apply to the justices. Surely it makes no sense to have lesser standards for the highest court than those in place for lower courts....
The Code of Conduct doesn’t frown on ideological activity but does prohibit political activity, and that’s where Scalia and Thomas crossed the line. The fact that they did so with seeming impunity demonstrates that voluntary adherence to ethical standards doesn’t always work. How to enforce such a code would be the hardest question, but there are options — possibilities include adjudication by other sitting justices, retired justices, lower court judges, the judicial conference or some combination of these. Exact methods could be explored in congressional hearings....
The bottom line is that if the judicial Code of Conduct becomes mandatory the number of events that would be placed off-limits is small. Meanwhile, the effect on the integrity of the court would be large.
Aron's call for ethics to be better applied to the SCOTUS might have a bit more weight behind it, particularly as it applies to the political activities of Scalia and Thomas and their cozy relationship with the Koch's, in light of a new study co-authored by conservative Court of Appeals Judge Richard Posner, which finds that "the Roberts Court rules in favor of business interests 61 percent of the time, a 15 point spike from the five years before when Chief Justice Roberts joined the Court."
While the Chamber of Commerce has recently tried to downplay the favorable treatment it receives from the Supreme Court, its own top lawyer admitted a few years after Roberts joined the Court that the justices give his client special treatment:
Carter G. Phillips, who often represents the chamber and has argued more Supreme Court cases than any active lawyer in private practice, reflected on its influence. “I know from personal experience that the chamber’s support carries significant weight with the justices,” he wrote. “Except for the solicitor general representing the United States, no single entity has more influence on what cases the Supreme Court decides and how it decides them than the National Chamber Litigation Center.”
How nice for them. As TP points out in the linked post, all of the justices have become more pro-corporate over the past quarter of a century, with even Justice Stevens ruling much more often in favor of the Chamber in the past four years than he did 25 years ago. So it's no just a function of the Roberts/Alito/Scalia/Thomas factor—though they are far more likely than their predecessors to rule in favor of the well-connected and the monied. A Code of Conduct might not change that, but at least it wouldn't be as in-your-face blatant.