How to Fix the Supreme Court’s Ethics Problem

From a Washington Post column by Ruth Marcus headlined “A legal veteran explains how to fix the Supreme Court’s ethics problem”:

Jeremy Fogel, the executive director of the Berkeley Judicial Institute, was a California state judge before being nominated by President Bill Clinton in 1998 to the U.S. District Court in San Francisco. As a judge, Fogel served for seven years on the judicial committee that reviews judges’ financial disclosure forms, and, from 2011 until 2018, as director of the Federal Judicial Center, where he helped oversee judicial education about ethics and disclosure rules.

Ruth Marcus: You have been thinking about judicial ethics for many years, in many different roles. And I’m not sure, during that time, there’s been the kind of uproar over ethics on the Supreme Court that we’ve seen over the last year. How worried are you about all of this?

Jeremy Fogel: Well, I’m concerned about the number of people who question the Supreme Court’s legitimacy. I want to be clear: I don’t question its legitimacy. I think the justices are capable people. They try their best to do the right thing for the country. They just have different — very different — views about what the right thing for the country is. And that’s not unusual if you go back and look at the history of the court.

But I think you just need to look at the poll numbers. You had an institution that was very highly respected, the most highly respected institution of government, and now those numbers have just been dropping like a rock. And I think it’s a combination of polarizing social issues that are being decided by the court because Congress is not able to act in that area, and social media; so, you have a lot more light shined on the court perhaps than has ever been before.

And then you have the ethical issues. And I’m not sure this court is far less ethical than any other one. Again, there have been problems with individual justices doing questionable things that go way back. But when you have this kind of polarized political environment, and you don’t have transparent rules, which they don’t have, then what people do is they say, “Oh, well, you know, Justice X or Justice Y voted the way he or she did because they were flying in people’s private airplanes or people bought their books.

And I think that’s really unfortunate, because I think it makes people think that the justices don’t have any ethical integrity. They need more transparency, more clarity, a common set of rules and procedures. As long as they don’t have that people are going to question.

Are you convinced that ethical lapses are a piece of what’s taking the toll on the courts standing? I’ve spoken with some political scientists who say, “That’s not really what’s happening. It’s all about the outcomes.” So, I think we should worry about the Supreme Court’s ethical practices and the transparency of its ethical practices, separate and apart from how its polling. But I am not necessarily clear in my own mind, that [ethics are] what’s dragging it down.

I think there’s a synergy. I’m not a political scientist, but my hunch is that the polarization around the cases is the thing that people are most spun up about. But I don’t think it gets any better when you have ethical lapses. And then people say, “See, they not only decided this case in a way that I can’t stand, but they did it dishonestly. Or they did it because somebody rewarded them.” If you didn’t have the political polarization, all you had were the ethical questions, I don’t think the court’s legitimacy would have taken this kind of hit. But when you have the ethical problems, it just makes it harder.

And when you say the ethical problems, do we have a perception problem about absence of adequate adherence to accepted ethical standards at the Supreme Court? I know you’re going to want to be careful about not appearing to criticize individual justices. Being respectful of that, do we have, in some instances, a substantive problem?

Well, let me put it this way, if you’re a lower court judge in the federal system, or if you are a state court judge at any level, including the supreme courts of the states, you have rules you have to follow and those rules actually cause people to feel restricted in the things that they can do. And people complain about it. I got into this area way back in the 1980s. I was the chair of the California judicial ethics committee, and I used to teach ethics classes to new judges. And they said, “Really, I can’t support my friend, Charlie, for the school board? I can’t go to this event?”

And what happens to lower court judges on every level, including in the federal courts, is that they learn to live with those limitations. And there is a perception among them that the justices don’t feel the same constraints. There’s a widespread perception that they don’t feel those constraints. I want to be really clear, I don’t think the justices are unethical; I think the justices need to make a statement that ethics are important.

The chief justice, who you worked with, has told us that the justices follow the Code of Judicial Conduct. He’s told us that they follow the requirements under the Ethics in Government Act to file their financial disclosures, and they are bound by the federal recusal statute. So, being argumentative here, from the chief justice’s point of view, what’s the problem?

Well, because what you can’t see is how each individual justice applies those [standards]. And I think that is a problem of transparency. I agree with the chief that recusals on the Supreme Court are different, because the consequences [of having an individual justice step aside from hearing a case] are different. And I think you need to have a different standard as to how you deal with individual recusals. But I think it’s important that the public and the litigants know what that standard is. To me, it’s not that they don’t make an effort to be ethical; it’s that they don’t show their work. And that’s not okay in a political environment like this.

You said you don’t think that the justices are unethical. I think a lot of people would say that they have serious problems with the ethics of the reported behaviors. And I’m thinking about things like taking money for tuition, about taking extensive free hospitality and plane rides, benefits that flow to justices that would not flow to ordinary people. And I think those things really do, understandably, rankle and concern a lot of people.

I don’t disagree with what you just said. I think there is a lot of concern about specific actions that specific justices have taken. I guess what I’m saying is, I don’t think [there is] quid pro quo kind of behavior, I’m going to rule in your favor if you pay my kid’s college tuition. If you look at Justice [Samuel A. Alito Jr.] in the Wall Street Journal, what he said was that my votes were not affected by anything that happened on the fishing trip. I’m quite certain that’s true.

The thing is that the appearances, that’s where they get careless. A lot of justices have been careless with this. What does it look like if somebody says, “Well, you went to this expensive dinner, or you accepted this hospitality, or you charge fees for your books.” It looks to people like, you shouldn’t be doing that, you’re supposed to be above reproach. There’s been too little attention [among the justices] to appearances. There’s a sense of why should I care about that? I think, “Why are you creating that question? Why do you not care what things look like?”

It’s interesting that the justices, except for Justice [Elena] Kagan, came from lower courts, where they had to abide by rules. And one wonders, what is it that happens when you get to the Supreme Court?

If you’re a lower court judge, you don’t have the same temptations. I mean, in 37 years as a judge, no one ever invited me to go on a private jet. It wasn’t like I had to say no — I never got asked. So, my son went on a private jet with a high school classmate whose parent was very wealthy. That parent’s company would occasionally have cases in my court. And I just said, “No more, they’re on my recusal list.”

I wanted to ask you to address the array of ethics stories that we’ve encountered. I’m wondering if you have a taxonomy for readers, just to understand when they should be troubled and when they shouldn’t be troubled.

You don’t want justices to live in isolation, you want them to be involved in the community, and to have friends and to have social connections. Having friends, socializing with people who share your political outlook or your social outlook — it’s unrealistic to expect Supreme Court justices to not have those kinds of relationships. And so, some of the criticism of different justices for you went for this meeting, or you went to this party, I don’t think that’s fair. It would be nice, in my ideal ethical world, if they went to a more ecumenical assortment of meetings, you know? I’d like to see some of the justices go to both the [liberal] American Constitution Society and the [conservative] Federalist Society.

Or neither, which is what I think Justice Kagan has decided.

I’d like to see that. The fact that you hang out with people who think the way you do shouldn’t surprise anybody. I don’t think that is a deep ethical problem. I think when you accept enormous largesse from people, or when you’re engaged in commercial dealings with people, and you don’t pay attention to appearances, that’s more of a problem. Where you’re getting benefits, you’re getting hospitality or goodies from people that would not be something an ordinary person could get, it creates the appearance that you’re getting something in return. And so to say, “It doesn’t affect my vote, I would have voted the same way anyway” — where I take issue with it as an ethicist is that I think appearances matter.

How do we think about things like [justices taking] summer teaching gigs? I have said that justices having contact with members of the bar, members of the public, law students is a good thing. I don’t particularly begrudge them doing it in nice locations. But I do think some people look at the extent of that activity and say, “This is not sitting right with me.” I have to say, I’m working through in my own mind how to think about this one.

Again, it depends so much on that particular case, right? If you’re going somewhere to teach, they put you up in a nice place, but you put in the time, preparing the classes — that it happens to be in a nice place, that doesn’t bother me. What bothers me is if you go somewhere and present for an hour, and you get a week of all-expenses-paid, luxury somewhere, then the value you have given is outweighed by the value you’ve received. And I think it’s fair to question that.

Some of the conservative pushback is that two things are happening: A double standard is being applied to the conservative justices. And the critics are seizing on these episodes, either made up or overblown, in order to attack the legitimacy of the court.

Both things can be true. That’s why it’s important to have rules, it’s important to have a reference point where you can say, no, actually, whether it’s been politicized or not, these are the rules they agreed to, and they weren’t followed.

Let’s get to the Fogel solution. What is to be done?

I think it’s best if this comes from the court. You avoid a lot of separation-of-powers issues. I think it would be meaningful if the court could, on its own, say, we’re going to adopt the code of conduct, we’re going to do our best to follow that code of conduct. And then just as important as having the code is having some way to get impartial referees in terms of what you do. I think there needs to be some place they can go to get an impartial opinion. And it can’t be somebody who works for them.

This is why I like the idea of retired judges. I could put a list of a dozen people together who would be on that list. They all have really deep experience in this area. Then [the justices] can say, “Okay, here’s our code of conduct, which we’re going to endeavor to follow. And in case of a complaint or in real doubts of our own about what to do, we’re going to refer to this group and get their opinion.” It’s not binding, it’s still up to you to do the right thing. But you have somebody to ask, and you’re not just dependent on your own counsel and your own view of what’s okay. It’s not a perfect solution, but I think it could move the ball.

That’s the conundrum: Your [panel of retired judges] is advisory. It’s ultimately up to the judgment of an individual justice. Unlike for the situation for lower court federal judges, there’s not an enforcement mechanism, because it’s hard to come up with how that would work.

I don’t see constitutionally, unless the court were willing to create it. I don’t see how you could have an enforcement mechanism that would override the judgment of a justice.

The chief justice — I understand the constraints that he’s operating under — but I think [the court is] in very dangerous territory.

I share your concern very much. I think more needs to happen than [the justices are] doing. And I think if they don’t do anything about it, there’s just going to continue to be this cascade of stories.

They’re not looking at the institutional damage that’s being done. And then they’re blaming it on the people who are criticizing them, rather than saying, “Look, there’s something we can do here, to block that.” You decide controversial cases, people are going to not like what you did, they’re going to look for bad things to say about you. But you don’t want to give them fuel by being careless about your own conduct.

Ruth Marcus is an associate editor and columnist for The Post