Professor John Greabe discusses the Supreme Court of the United States' code of ethics and the messy impact of politics and personal relationships. Produced and Hosted by A J. Kierstead
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Legal topics include SCOTUS, federal government, politics, constitution, ethics
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A. J. Kierstead, Host:
This is The Legal Impact, a podcast presented by the University of New Hampshire Franklin Pierce School of Law, now accepting applications for JD and graduate programs. Learn more and apply at law.unh.edu. Opinions discussed are solely the opinion of the faculty or host, and do not represent the official views of the University of New Hampshire and UNH Franklin Pierce School of Law.
I'm your host, A. J. Kierstead, and today, I'm joined by Professor John Greabe, director of the Warren B. Rudman Center for Justice, Leadership & Public Service. Learn more about the Center at law.unh.edu/rudman.
Welcome back to the show. It's been a few months.
Professor John Greabe:
It has. It's nice to be back. Nice to see you, A. J..
A. J. Kierstead, Host:
All right, so we have possibly two topics we're going to hit in this episode. Let's start off with one that's really caught a ton of headlines in the last couple of months, and that is U.S. Supreme Court Justice Clarence Thomas has been embroiled in some controversy again, but this time related to him personally with regards to his relationship with Harlan Crow, and there's all sorts of... I don't want to editorialize and say, "Sketchiness," but that's the way many people are phrasing it. And people are unsure how exactly ethics works with the U.S. Supreme Court, because it doesn't work like other branches of the government. So I mean, at a high level, how are ethics determined to the Supreme Court?
Professor John Greabe:
Well, I always use this line in my constitutional law classes, it's from the Mel Brooks movie, it's good to be king. But the court is really king of the judiciary system. It's really unconstrained by anything other than the jurisdictional limits that are placed on it in Article III in the Constitution. So the U.S. Supreme Court, unlike all other federal courts, does not have a judicial code of conduct that it has adopted and agreed to abide by. And people have pointed this out for years, but at the end of the day, it's up to the court itself to decide if it's going to adopt such a code, and it has, thus far, decided not to do so.
Now, during regular relatively... I don't know what to... Peaceful isn't the right word. During more tranquil times, it's not the sort of thing that draws a lot of attention. But you sort of couple the times that we're in right now, which are so partisan and where the court is undeniably being very, very aggressive in changing American constitutional law, you combine that with the lack of an ethics code and the limited nature of the disclosures, in particular.
Because there are. I mean, the Supreme Court justices are still obliged to fill out disclosures that other federal... When I was a federal employee, I had to fill it out every year too. But you combine it with sort of a limited understanding of what they need to disclose on those disclosure forms, and it's going to draw attention, and that's what's happened right now.
Not just with Justice Thomas, but there've actually been a lot of stories in the last few weeks about other justices too. But Justice Thomas, I mean, the scope of what has been undisclosed is really quite something when it comes to Justice Thomas and his relationship with this billionaire, Harlan Crow. Harlan Crow has funded causes near and dear to the hearts of those on the far right who are cheering on the rulings that Justice Thomas and Justice Alito and a couple of the other members of the court are sort of championing, and it's a recipe for controversy.
A. J. Kierstead, Host:
Now, when you look at the ethics or the code of conduct that the Supreme Court has, I mean, we always talk about the checks and balances between the three different branches of the federal government. They're able to interact with each other to kind of make sure things are, in theory, kept level. Obviously it fluctuates over who runs what and what decade you're in and what's going on in various aspects of the world. But what is the check on the Supreme Court with regards to the other two branches that might have some form of interaction with us?
Professor John Greabe:
Well, the constitutional check, the power that Congress holds over the Supreme Court is... Well, I guess the most direct one is the impeachment and removal power. So federal judges, once they have their commission, serve... They have life tenure and they can only be removed from office through the process of impeachment by the House of Representatives, and then conviction in the Senate by two-thirds of the Senate.
A. J. Kierstead, Host:
Wow.
Professor John Greabe:
So that's-
A. J. Kierstead, Host:
That's intense.
Professor John Greabe:
Yeah, I mean, that's just not going to happen. There are also... I mean, theoretically, Congress could limit the jurisdiction of the Supreme Court and federal courts. Congress does have a lot of control over jurisdictions. So Congress could, in theory, write the court out of certain doctrinal areas. Although, that's actually a highly contested sort of theoretical debate. It's not something that Congress has done. But there are not a lot of controls that Congress and the President have over the Supreme Court and over members of the federal judiciary more generally. The impeachment power's there, but it's not one that has been used. It's not a power that's been used outside the context of showing of actual corruption, like taking bribes or something like that.
A. J. Kierstead, Host:
Once again, something that's just been broiling our federal government over the last several months are these sort of financial disclosures. I mean, the meme online is Nancy Pelosi and her husband, and what happens with their stocks does better than what many people on Wall Street get from the results. But when you're looking at what's going on strictly with Justice Clarence Thomas in this situation with Harlan Crow, I mean, there was property that Harlan Crow... I don't believe allegedly is even necessary. I think he did purchase, and then that Clarence Thomas's mother was still living on at the time, for way more than the property was listed as being worth. That's very problematic right there.
Professor John Greabe:
Yeah, I mean, the appearance is not good. Just today too it was in the paper that apparently he paid the private school tuition for a grand nephew of Justice Thomas's, and he allowed the Justice's mother to live in that house then rent free after he purchased the house. There's a lot... And the scope and scale of the vacations and flights and other things too. I mean, it's really quite something.
It's so much about the Supreme Court, it involves norms. Really norms that you hope that the court will be attentive to because there are no enforcement mechanisms, or little in the way of enforcement mechanisms. But the Court, in Marbury versus Madison, grabbed quite a power for itself. It grabbed the power to be the final word and the meaning of our Constitution in a society that identifies as a democratic republic. So these nine people in robes in Washington, D.C. have an astonishing amount of power.
But one of the lessons of history is that the Court gets that it needs to act with discretion and that it needs to be mindful of optics, so that when it exercises that power, its rulings will continue to be respected. I mean, it says, "We are a law court. We are not an arena where partisan politics plays out." But at the end of the day, when the Supreme Court makes a decision, it doesn't have any way to go enforce that decision. It doesn't have the power of the purse. So the Court has long been thought to recognize the need to sort of reinforce the view that it's a law court. That what happens there is law, it's not just our politics.
That idea has been put to the test recently. Fairly or not. I'm not taking a position on that. But the leaking of the Dobbs opinion, and then the Dobbs opinion itself overturning a precedent that is obviously one of the most well-known precedents, right, in American constitutional law. What the court has done, it's clearly... Well, I think it's pretty clearly going to hold that affirmative action is unconstitutional later this term. I just took a case earlier this week where it's going to transform the law of administrative agencies.
Now, depending on one's perspective and what one believes about how power ought to be exercised, these may all be great developments, but the fact is not everybody sees it that way. And there's always going to be a huge segment of the public that is going to be eyeing the court with skepticism when it's changing the law like this. And when the justices act in a personal manner that seems to say, "We don't care what you think," that can be problematic if at the end of the day, the Court wants to be seen as an institution whose judgment should be respected regardless of whether or not one agrees with them.
So I don't think the Court has done a very good job of that. I don't mean to go on so long, but I worked for 17 years in the federal courts. I worked for three judges who were appointed by Republican presidents, and I worked for three judges who were appointed by Democratic presidents. And I used to tell people all the time, because there's always cynicism about government, of course, right? I used to say I think you'd be really pleasantly surprised if you saw what goes on behind the scenes, that I never once thought. I certainly disagreed with rulings that my judges were involved in and sometimes were making, but I never felt like what was happening wasn't law. I never felt like what was happening was people ruling for their team or anything like that.
I still think that's largely the case. I think that's the case certainly in the lower courts, and I think it's largely the case at the Supreme Court too. There's still a lot of cases that come out nine, nothing at the Supreme Court. But in these cases, the five, four, and now six, three cases, cases like Dobbs and the affirmative action case and the administrative agency's case and the gun cases and all these sorts of cases that gain so much attention, the way the court has behaved and the tone that it has taken in some of its opinions has not communicated that, "We get it, and we are the Supreme Court of the entire United States, even those of you who disagree with us." There's been sort of a triumphalism. There's been sort of a meanness and a sharp, rhetorical approach that would never have flown in the court that I worked on, the First Circuit.
And I think the court is doing damage to its reputation through the behavior of some of its members, with respect to these matters of disclosure, these matters of ethics, but also just the way they talk to each other and the way they talk to the American people sometimes at these separate events. I mean, it used to be really unusual to hear a Supreme Court justice go give a speech anywhere about anything, but it seems like a lot of them are out on the speaking circuit right now and writing books and doing all this. I think there's a price to be paid for that, personally.
A. J. Kierstead, Host:
Yeah. It seems like that public aspect of it's really kind of snowballed since the late '90s with Scalia, especially, spoke extensively. Ruth Bader Ginsburg spoke extensively. I mean, how much do you think it might have to do that the Supreme Court's kind of green, ultimately, when it comes to being in this federal position? We have new justices that were put in place in a very polarized time that have not had that... They've only been on court a couple of years, ultimately, at this point, and they haven't necessarily had the kind of calm background of the cultural climate to kind of settle in.
Professor John Greabe:
That's a really interesting question. Usually the question is, "Aren't they too old?" But you're saying maybe the court's too young, or maybe we have too many new members.
There has been a huge amount of turnover. There's no doubt about that. And the recent turnover has all been, of course, painful, right? I mean, since Justice Scalia's death, we had the Merrick Garland nomination not go anywhere, and then Justice Kavanaugh was nominated. And those hearings, of course, devolved into matters that go far beyond what kind of justice Justice Kavanaugh was going to be. And then when Justice Ginsburg died, of course the confirmation of Justice Coney Barrett was rushed through, seemingly in contradiction to some of the statements that were made when Merrick Garland's nomination was pending. So all of that, I think you're absolutely right, all of that informs perhaps a lack of full understanding on the Court, an insularity that we're seeing.
I think too, the whole idea of the justices themselves not being subjected to interviews during the leak investigation and that coming out. I mean, it's like, "Why? What are you thinking?" Right? Do you really think the American people are going to think that this was like we've got to get to the bottom of this type of investigation if the justices themselves were exempt from being asked questions? I mean, real life people out there are going to say, "What? What?"
And they're saying the same thing. I'm sure Justice Thomas feels like, "None of my rulings have been affected by these lavish vacations or anything like that." But to Joe and Jane out there who are... It's like, "What, are you kidding me? $500,000 worth of vacation are being conferred on you, and you really think that you're unaffected then by the fact that this person has a vested interest in certain positions prevailing at the court?"
Plus, Justice Thomas's wife, there's also the problem that she's... She's such an activist and has been involved in really pretty extreme causes, recently, and the optics that that creates. So there's just a lot of problems there. There's just no doubt about it.
A. J. Kierstead, Host:
A program that the Warren B. Rudman Center also has regularly is their Justice & Journalism series. Which I mean, I think the impact of journalism on what's been going on with the courts the last 10 plus years also kind of is important, especially with some of the controversies that are being addressed.
I mean, something that was another ethical dilemma for me personally, from a journalistic standpoint, is Nina Totenberg and Ruth Bader Ginsburg, with their extraordinarily close relationship. Which to me seemed like an ethical issue inherently, because just like with politicians, journalists, in theory, should be not necessarily combative, but at least being another check outside of government on what's going on with the courts, and that wasn't seen. And we're seeing the same things, at least to me on the face of it, we're seeing that with the leak of the Dobbs decision. Not much interest in the world of the mainstream media, which is a concern to many people on the right side of the aisle.
Professor John Greabe:
Yeah, no, absolutely. And it's one thing if you're already close friends and then somebody moves into a position of power with government. In those situations... I'm close friends with a federal judge because we clerked together. We've been friends for 30 years. If I were to appear in a case, this judge would recuse herself, and I am on her recusal list. So nobody would say we shouldn't continue to be friends, but there's an awareness of the optics. And like you say... But it's even more troublesome when these friendships emerge after these people have become members of the court, because it's very hard, again, for sort of everyday Americans to avoid the conclusion that this isn't just about friendship, this is about access and this is about power. And to many people, that feels corrupt.
A. J. Kierstead, Host:
Do you think in the long term we're going to be seeing any changes, or do you think where it's just kind of going to gloss over and the Court will continue as business as usual?
Professor John Greabe:
Well, I'm kind of out of the prediction business, because things continue to happen that I never would've predicted. But in the near term, no, I don't think anything will happen. Right now... I mean, think another problem with our government is capture. I think political actors and, I think, justices are political actors. Now, I'm not saying partisan, but they're acting within our political order.
But there is big money behind the status quo, right? There's always going to be... Any sort of significant change to the status quo is going to engender opposition from those who benefit from the status quo. And right now, there's extraordinary wealth behind the status quo, and due in no small part to Supreme Court rulings. That wealth makes its way into the political system. That's what I think is the biggest obstacle to change, to significant change within our constitutional system right now, is the amount of money that's invested in opposing change, no matter what the topic and no matter what the context.
It doesn't mean that we won't have change, but some of our biggest changes have come after periods of cataclysmic events. Big changes after the Civil War, big changes after World War I, big changes after the Great Depression and then World War II. That's when... I don't think it's a coincidence when the status quo is just then interrupted in a way that is really profound.
So we'll see. I mean, maybe we'll blow the debt ceiling and the economy will melt down, and that will engender change. I don't know. But I think it'll be painful, right, if it happens. So we'll see.
A. J. Kierstead, Host:
Professor John Greabe, director of the Warren B. Rudman Center for Justice, Leadership & Public Service, thank you so much for joining me.
Professor John Greabe:
Sure, anytime.
A. J. Kierstead, Host:
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