Supreme Impartiality

Published: January 4, 2012

By Jim Lichtman
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A few years ago, I was called for jury duty. After being selected as a finalist, the judge explained that the case we would be deciding had to do with spousal abuse. He asked if we, as potential jurors, had anything in our personal lives that might cause us not to be impartial in this case, to speak up.

I explained that a family member had been involved in such an issue and that, as much as I’d like to be objective, I could not guarantee that my judgment would not be clouded after hearing details of the case.

“Fairness,” ethicist Michael Josephson says, “is one of the most elusive ethical values since, in most cases, stakeholders with conflicting interests sharply disagree on what is fair.”

Do Supreme Court justices ever face an ethical issue that would require them to withdraw or stand down on a case?

“The Supreme Court’s greatest assets are its integrity and the public trust,” Democratic Representative Earl Blumenauer said in a statement regarding questions the congressman and others have expressed concerning potential conflict-of-interest issues surrounding Justice Clarence Thomas.

In October, 2011, politically-focused news organizationPolitico wrote that “Dozens of House Democrats are calling for an investigation into potential conflict-of-interest issues involving Supreme Court Justice Clarence Thomas.”

Among the charges cited are “…that [Thomas] failed to report at least $1.6 million that his wife, Ginni, had earned since 1997; that he might have failed to report gifts from rich supporters; and that he inappropriately solicited donations for favored non-profits.”

“Yet for months now,” Blumenauer said “concerns have been building about the unwillingness or the inability of the Supreme Court to address allegations of potential ethics violations by Justice Clarence Thomas.”

The following month (Nov. 27) the Washington Post reportedthat “Senate Republicans stepped up the pressure on Justice Elena Kagan to take herself out of the court’s decision on the health-care reform act [due to Kagan’s role as President Obama’s solicitor general].”

“In his year-end report on the state of the federal judiciary,” theWashington Post reported recently, “[Chief Justice] Roberts for the first time addressed a growing controversy about when justices should recuse themselves from cases and whether a code of conduct that covers lower-court judges should apply to the justices as well.”

In a lengthy statement, Roberts said that while he could not comment on “ongoing debates about particular issues,” he referenced the judicial ethics that were adopted in 1924 saying that judges “should not be swayed by partisan demands, public clamor or considerations of personal popularity or notoriety, nor be apprehensive of unjust criticism.”

“I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” Roberts wrote. “They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”

“We are all deeply committed,” he added, “to the common interest in preserving the court’s vital role as an impartial tribunal governed by the rule of law.”

“Federal law,” the Post writes, “requires judges and justices, including those on the Supreme Court, to disqualify themselves when their ‘impartiality might reasonably be questioned,’ as well as for specific reasons such as a financial interest or the involvement of a family member in the litigation.

“In addition, it calls for recusal when the judge has served in the government and ‘participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.’ ”

In essence, Chief Justice Roberts seems to be saying that the decision is up to the individual justices themselves, but this raises more questions.

No one is totally unbiased. All of us, including Supreme Court justices, are partial to certain points of view. The question is can a justice set aside those points of view in examining a case? Can they pass judgment on a case based on the merits?

The Post writes, “Roberts said charges that ‘the Supreme Court is exempt from the ethical principles that lower courts observe’ is based on ‘misconceptions about both the Supreme Court and the code.’

“Justices consult the code as a ‘starting point,’ but it cannot answer all questions, he said. Justices may also ‘turn to judicial opinions, treatises, scholarly articles and disciplinary decisions’ as well as seeking advice from experts and from their colleagues.”

But do the justices, in fact, seek outside opinion when it comes to deciding whether they should step aside in deciding a matter brought before them – a matter that would have implications for millions?

Can we, in fact, trust each member to be truly impartial and to allow them to determine that impartiality on their own?

When it comes to fairness, Josephson says, “…decisions should be made with impartiality and objectivity based on consistent and appropriate standards – avoiding favoritism or prejudice.

“They are jurists of exceptional integrity and experience,” concludes Roberts. In the months to come, it will be interesting to watch, and asses each of them to see if they demonstrate that “exceptional integrity.”


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