an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The organization, "Common Cause," recently asked Attorney General Holder to investigate whether Justice Scalia and Justice Thomas should have recused themselves from Citizens United v. FEC, the 2010 decision in which the Supreme Court invalidated federal restrictions on political campaign ads by corporations and unions. The gist of Common Cause's wide-ranging complaint is that the two justices "attended . . . retreats sponsored by Koch Industries, the second-largest privately held corporation in the United States and a major political player that directly benefited from the Citizens United decision." Common Cause reports that after the Court loosened restrictions on campaign spending, Koch Industries spent $2.6 million in the 2010 election cycle, mostly to benefit Republican candidates. Common Cause claims that the two Justices's participation in the Citizens United case after they had attended Koch-sponsored events raises "serious issues of the appearance of impropriety and bias." Common Cause also cites as additional evidence of impropriety the political lobbying activities of Justice Thomas's wife, through an organization that receives contributions from (unnamed) corporations.
Meanwhile, some law professors have called on Congress to impose on the Supreme Court Justices the same ethics rules that apply to lower federal judges. Although short on details, the professors ask that Congress require members of the Supreme Court to issue a written decision explaining any denial of a motion to recuse and urge the creation of a panel, consisting of some of the Justices or outside experts, to review recusal denials. According to news reports, these professors are also motivated by concerns about connections between Justices Scalia and Thomas and the Koch family.
It would, of course, be wrong to turn on the investigatory machinery or craft new recusal requirements on the basis of complaints by special interest groups against particular Justices and about particular decisions with which those groups disagree. Because all of the Justices would be vulnerable to investigation and bound by new rules, one needs to think generally about the wisdom of the Attorney General investigating or Congress legislating. To that end, let's test the wisdom of these proposals by thinking not about Scalia and Thomas but about Ginsburg.
Consider the following:
In 2010, Justice Ginsburg wrote the majority opinion in Christian Legal Society v. Martinez. That case held that the University of California, Hastings College of the Law, did not violate the First Amendment by refusing to give full campus recognition (and the accompanying benefits) to a student organization, the Christian Legal Society, on the ground that the Society refused to abide by Hastings' requirement that student groups not discriminate in admitting members on the basis of sexual orientation or religion. Justice Ginsburg explained that Hastings simply had an "all-comers" policy governing student groups and that such a policy is reasonable and viewpoint neutral and therefore did not violate Christian Legal Society's First Amendment rights. As a result of this decision, educational institutions can deny official recognition to student organizations that do not abide by the institution's non-discrimination rules.
Should Justice Ginsburg have recused herself from Christian Legal Society? The approach offered by Common Cause suggests that she probably should have. Here is why: Law schools directly benefit from the ruling in Christian Legal Society. Justice Ginsburg has participated in numerous programs at law schools around the country, with those schools paying her expenses. Moreover, Justice Ginsburg's daughter is on the faculty of Columbia Law School (and Justice Ginsburg's late husband, Martin, taught at Georgetown). Many Justices consider their law clerks to be family: many former law clerks of Justice Ginsburg are also law school faculty members, who benefit from the ruling.
In its complaint against Justices Scalia and Thomas, Common Cause describes their attendance at Koch-sponsored events as improper because the events involved discussion of political issues. Justice Ginsburg has also weighed in on political issues during her visits to law schools, including on the benefits of affirmative action. (Asked about Michigan voters who responded to the Court's decision in Grutter v. Bollinger by prohibiting by referendum any consideration of race in university admissions, Justice Ginsburg told students at the Indiana University in 2007: "It is particularly hard to understand . . . why people voted the way they did. Perhaps it's because they didn't understand what affirmative action truly means. . . . It takes caring people to do the right thing. You can't just sit back and say, 'Oh, there's nothing we can do, the other side has geared up and is promoting anti-affirmative action referenda all over the country.' It takes the will to fight back.") And, of course, a law school's imposition of a non-discrimination policy for student organizations, upheld in Christian Legal Society, represents one political preference over others.
So there you have it: a Justice's paid visits to engage in political dialog; a subsequent ruling by that Justice that allows the beneficiary to pursue its vision of the good life; and even family members of the Justice who benefit by connection.
Should the Justice Department investigate? Do we need ethics rules and a review panel to rein in the runaway justice(s)?