SUPREME COURT UPDATES

ABSTRACT: Here are three quick updates related to the US Supreme Court. First, issues with the conduct and ethics of a couple of the Justices have arisen in part because Supreme Court Justices are not covered by the Code of Conduct that applies to all other US judges. A Supreme Court Ethics Act of 2013 is being proposed in Congress that would require the Court to adopt a code of conduct similar to the one for other judges.

Second, Supreme Court Justice Ginsburg recently articulated what many legal scholars have been saying: that the current Court is “one of the most activist courts in history” based on its “readiness to overturn legislation” and judicial precedents.

Third, the Supreme Court will be considering cases in the upcoming year that will produce major decisions. These will give further indications of how the Court is balancing precedent and deference to legislative intent with ideology and activism. On the campaign financing front, the Court will consider a case that challenges the total, or aggregate, contribution limit of $123,200 on what an individual can give directly to all candidates for federal offices combined over the 2 year election cycle.

FULL POST: First, issues with the conduct and ethics of a couple of the Supreme Court Justices have arisen. The Supreme Court Justices are not covered by the Code of Conduct for United States Judges. A number of situations have occurred with Supreme Court Justices that under the Code would have been prohibited or would have required Justices to refrain from participating in certain cases due to apparent conflicts of interest. For example, Justice Thomas’s wife is a highly paid lobbyist who works on issues (health care for example) that have come before the Supreme Court. Justices Thomas and Scalia have attended and spoken at fundraisers and events for groups that are politically active on issues that have come before the Court. Neither has refrained from participating in any cases despite these apparent conflicts of interest.

Therefore, a Supreme Court Ethics Act of 2013 is being proposed in Congress that would require the Court to adopt a code of conduct similar to the one for other judges. The Justices, including Chief Justice Roberts, are, of course, opposed to the proposed legislation, asserting that they are capable of policing themselves. [1]

Second, Supreme Court Justice Ginsburg recently articulated what many legal scholars have been saying: that the current Court is “one of the most activist courts in history.” Her comment was based on the Court’s “readiness to overturn legislation”. Others have also noted its readiness to overturn judicial precedents, including ones of previous Supreme Court rulings. As examples of activism, Ginsburg highlighted the overturning of the Voting Rights Act and the ruling that the Affordable Care Act (aka Obama Care) was not a constitutionally allowed use of Congress’s power to regulate interstate commerce. [2] Other examples of activism cited by other legal scholars include the Citizens United decision (and others) on campaign financing, decisions on affirmative action, and the decision stopping the recounting of ballots in Florida for the 2000 presidential election. The reasoning given with these decisions is, in many cases, so convoluted that it is hard to view them as anything but ideological activism.

Third, the Supreme Court will be considering cases in the upcoming year that will produce major decisions. These will give further indications of how the Court is balancing precedent and deference to legislative intent with ideology and activism. Front and center among these cases will be ones on campaign financing and affirmative action.

On the campaign financing front, the Court will consider a case known as McCutcheon versus the Federal Election Commission (FEC) that challenges the total, or aggregate, contribution limit of $123,200 on what an individual can give directly to all candidates for federal offices combined over the 2 year election cycle. This amount is well over twice the income of the average American family. (Anyone can give unlimited amounts to Political Action Committees that are, at least theoretically, independent of the candidates themselves.) [3]

If this aggregate limit is thrown out, our campaign financing and our elections will be even further skewed toward wealthy individuals. The Supreme Court has previously upheld these aggregate contribution limits because they address both the reality and appearance that our elected officials are corrupted by the influence of money. In our democracy, every citizens’ vote and voice is supposed to be equally heard and represented. [4][5]