For the past two years, we have watched in horror as the executive and legislative branches routinely violated democratic norms. Our society is polarized, and discourse with those with whom we disagree is angry and uncivil. Shame seems to have lost any significance in guiding behavior. As the impeachment inquiry proceeds and obstructive conduct previously unimagined occurs every day, more eyes look to the judiciary for some anchor of normality. However, it is becoming apparent that norms are also being violated in the judiciary, and shame may not be a substitute for new legislation to protect its reputation.
Judges are supposed to be apolitical. The rule of law requires that decisions be based on the laws and Constitution of the United States, and not a judge’s personal views or political preference. Judges are bound by a formal Code of Conduct. Among the restrictions imposed is a prohibition of engaging in political activity. But what, exactly, does that mean?
Some cases are simple. A federal judge, for example, cannot run for office or endorse a political candidate. Other questions are not as simple. Can a federal judge be a member of a quasi-legal or political organization, such as the Federalist Society, or participate in its events without running afoul of the strictures imposed by the Code of Conduct?
In February, the Code of Conduct Committee, which aids judges in complying with their ethical obligations, issued Advisory Opinion 116. This opinion held that judges are prohibited from engaging with organizations involved with “hot-button” political issues or that the public associates with political positions. Additionally, judges must stay away from groups funded by dark money and “persons or companies engaged in political activities.”
Without naming or limiting its scope to any particular organization, the opinion’s effect is to bar judicial participation with organizations such as the Federalist Society, a 60,000-member group of conservative academics, lawyers, and, yes, some judges. The Federalist Society is the epitome of a now-prohibited organization—one committed to create a system of “limited, constitutional government [that the country has not seen] since before the New Deal.” Some claim it is not a political organization because it also has liberal members and does not engage in advocacy.
This is a straw man. The opinion does not require an organization to actively advocate for a political position in order to be a political organization. Moreover, the presence of liberals does not affect public perception of the group, which has been cemented by its role in judicial selection: Its executive vice president, Leonard Leo, is an adviser to the president. Leo also serves on intertwined boards spending millions of dollars on a mission to transform the trajectory of the judiciary. The opinion’s financial backing test clearly bars judicial participation with the Federalist Society, and no defender of the organization has seriously argued otherwise. The Federalist Society is secretive about its finances, but records that exist show its major funding comes from dark money sources and conservative Republican funders, including the Mercers and the Kochs.
Unfortunately, some judges just don’t care that their participation with the Federalist Society violates Opinion 116. Justices Brett Kavanaugh and Neil Gorsuch are headliners for the group’s annual convention, which includes a black-tie dinner. Nine lower court judges are moderating Federalist Society panels. Most are recent appointees, elevated to the federal bench by Donald Trump. Several boast current memberships in the Federalist Society. Undoubtedly, this is a repayment to the organization responsible for their appointments. Some may be auditioning their conservative bona fides for future Supreme Court appointments. More federal judges are attending and have not yet been identified. It is not clear if any of these judges are paying their own way or if they are relying upon Federalist Society money to do so.
Regardless of who pays, these judges’ participation is shameful. Previously, judges pretended that nothing was wrong with their Federalist Society activities because there was no clear guidance. That excuse disappeared with Advisory Opinion 116.
When judges act unethically with no consequences, legislative solutions become necessary. Congress has several bills before it to rein in this conduct, including establishment of an inspector general for the judiciary, legislation subjecting the Supreme Court to the Code of Conduct, and transparency legislation regarding attendance and reimbursement for judges participating in such events.
Some claim that the Code of Conduct can’t apply to the Supreme Court because of the separation of powers doctrine. They argue that Congress cannot compel the justices to follow any particular ethical guidelines. It’s time to test that theory. Even if it fails in court, an IG could formally report on ethical lapses by both judges and justices. An IG would have no power to remove wayward judges, of course. Only Congress can do that, through impeachment. But an IG might be able to modify behavior by shaming jurists who violate the rules.
A distinct minority of judges behaving outside the norms with the silent acquiescence of the judiciary is reminiscent of the recent judicial sexual harassment scandal. Then, as here, some judges were aware of a minority of colleagues in their midst engaged in offending conduct—yet said and did nothing. Because of their silence, sexual harassers harmed more victims, and the judiciary’s reputation was stained when the scandal finally exploded.
I was honored to serve as a United States judge. It was a challenging job, and every day, people before me were at the lowest points in their lives. Usually, at least one party was disappointed with the outcome. I know that the integrity of the judiciary was a powerful reason for the losing party to accept a bad outcome. Preservation of judicial integrity is why the Code of Conduct exists.
Chief Justice John Roberts decries public perception that the Supreme Court is political. His concerns are justified. A recent poll indicated that, by a 55 to 38 percent margin, the public believes Supreme Court decisions are guided by a justice’s political views rather than by the law. Perhaps the chief could help change this perception by persuading his colleagues to avoid political events, such as the Federalist Society black-tie gala.
Surely, Chief Justice Roberts must recognize that the current method of policing judicial political misconduct is not working. If the judiciary (and a healthy dose of shame) cannot do the job, then Congress must act to halt judges’ ethical breaches. The Federalist Society will survive; it can espouse its conservative ideology without participation by judges. But it is not clear that the judiciary’s reputation for integrity can survive if judges continue to participate in Federalist Society functions.