The Hill (Op-ed)
By Gabe Roth
April 26, 2016
Eight Supreme Court justices took their seats last week to hear arguments on whether President Obama’s executive action on immigration is legal. While advocates hope Chief Justice John Roberts can wrangle a five-vote majority to their side, a likely 4-4 result may mean a do-over once the court is back to full strength.
Even as the problems caused by an even number of justices come into focus, sometimes – and more than it seems at first blush – eight is warranted. Every year, instances arise in which a jurist’s independence on a case is called into question, yet he or she refuses to recuse – a posture that harms the waning trust we have in the institution.
In 2011, for example, the court handed down a 5-4 decision in a major class action suit, Wal-Mart v. Dukes, and Chief Justice Roberts voted with the majority that sided with the retail giant – even though earlier that year, three companies in which Roberts owned as much as $450,000 worth of shares in filed pro-Wal-Mart “friend of the court,” or amicus, briefs.
This amicus issue is not covered by the federal recusal statute, so Roberts was not required to sit out Wal-Mart.
Further, no ethics code exists at the Supreme Court (like in lower courts) that may have dissuaded him from participating, even though his deciding vote presumably helped the bottom lines of the companies whose stocks he owned.
In fact, it was Roberts himself who acted as judge and jury regarding his impartiality. He wanted to hear the case, so he heard the case, and that presents a clear ethical problem.
The solution: the Supreme Court should draft and adopt a binding code of conduct that covers what the justices should do when there is a perceived conflict of interests.
It is not just the chief justice whose independence has been questioned. In just the last few years, nearly every member has arguably made a wrong call in refusing to recuse.
In 2010, Justice Clarence Thomas voted in favor a striking down certain campaign finance laws around the time
he attended a meeting organized by the Koch brothers, who are known for their vociferous opposition to such laws. In 2012 and 2015 Justice Elena Kagan did not step aside from cases related to the Affordable Care Act, though it is more than reasonable to believe she was involved in crafting its legal defense when working in the Obama White House. Last month Justice Ruth Bader Ginsburg heard an abortion suit stemming from a Texas law that she was openly critical of soon after it passed.
Justices Stephen Breyer and Samuel Alito, along with Chief Justice Roberts, have heard more than two dozen cases in the last few years, like Wal-Mart v. Dukes, in which companies whose stocks they own filed an amicus brief. The three collectively sided with those companies nearly 70 percent of the time. In the 1980s and 1990s Justice Anthony Kennedy along with six of his colleagues accepted dozens of paid trips from West Publishing, a regular high court litigant whose arguments the justices frequently favored.
While our political parties do not agree about how we return to a full bench, there is consensus that nine is the ideal number of Supreme Court justices. But there are times in which the court does itself a disservice when a justice fails to sit out a case, weakening our faith in the integrity of the third branch.
Should Chief Justice Roberts and his colleagues implement a formal ethics code – one that is mindful, of course, of the unique role the high court plays at the top of the federal judiciary – the public and the justices themselves would have a much-needed clearer vision about when a recusal should take place. (Members of Congress have from time to time called for the nine to promulgate such a code, yet to date, the ethics bills that have been introduced remain single-party efforts with little momentum.)
At a time when the Supreme Court is being politicized to a degree rarely seen in our nation’s history, taking the important step of raising the ethical bar would generate greater confidence that the institution is acting like the independent one it was designed to be – one that is both above politics and above reproach.
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