An Unethical Court

It is now being argued that Justices of the United States Supreme Court are not subject to the rules of ethics governing the behavior of judges. I liken that assertion to the argument that the Declaration of Independence is not a part of our body of law. The argument that this document, which sets forth the very principles on which our nation was founded, is not a part of our laws is absurd. Historians say that the first documented instance of someone quoting the Declaration as an authority was when Abraham Lincoln quoted it in his Gettysburg Address. In interpreting our laws, however, courts take into account the principles on which those laws are based, the intent of the law, and whether the law is equitable. There is little doubt that in framing the first ten amendments to our constitution our founding fathers had the principles stated in the Declaration of Independence firmly in mind. Unfortunately other parts of our constitution denied to many people the rights guaranteed by those amendments, and it took a civil war to cure that defect. Following that war several constitutional amendments and court cases extended citizenship to all people who are born in this country and established the primacy of federal law. Establishing the primacy of federal law meant that no state could deprive its citizens our groups of its citizens of the rights protected by our constitution. In doing this we made our written laws conform to the principles stated in our Declaration of Independence.

The assertion that Justices of the United States Supreme Court are not bound by the rules of ethics governing the behavior of all other judges defies all logic. The Supreme Court has enormous power. It can modify, change, and nullify laws. It therefore has the power to shape the fabric of the laws of this nation of laws. The guiding principal behind the rules of judicial ethics is to assure impartial hearings and fair and unbiased decisions. To say that the Justices of the highest court in the land are not bound by rules of ethics and can act unethically is ridiculous on its face. It violates the principle that no one is above the law, and it violates the intent of our entire body of laws. If those Justices are free to act unethically no one can be assured of a fair and impartial hearing, and no one can count on being afforded the protections guaranteed by our constitution!

The principles upon which our laws are based are the essence of our laws. Clearly it was not the intent of our founding fathers to establish a court that would undermine the integrity of our judiciary by acting unethically. The Supreme Court has tacitly acknowledged that its justices are not permitted to act unethically when it accepted the resignation of Justice Fortas who was pressured to resign because of his violation of the rules of ethics. The question, therefore, is not whether the Justices of the Supreme Court must follow the rules of ethics, but rather who has the authority to enforce those rules in regard to Supreme Court Justices. The only written law addressing the power to remove a Supreme Court Justice from the court is the power to impeach. A congressional committee or the Justice Department should therefore investigate Clarence Thomas to find the grounds for impeachment. The burden of proof to establish that he committed a high crime or misdemeanor is far more difficult than the burden of proof to establish that he behaved unethically, but the evidence of his corruption is mounting. There are also questions about whether a violation of judicial ethics constitutes judicial misconduct and whether judicial misconduct is a violation of criminal law. I will leave the answer to those questions to people who have the training and the time to research them, but I will say that Justices of the Supreme Court cannot be exempt from such laws. I am aware that many people will say that the precedent set by impeaching Thomas and removing him from the court could undermine the independence of the court. But the dangers of permitting Justice Thomas to remain on the court are far more dangerous than the precedent set by removing him. His refusal to recuse himself from hearing appeals when it is apparent that he has a conflict of interest is a judicial travesty. He must either resign or be removed. The integrity of our entire judicial system is on the line!