Scalia and Thomas: Neither is Caesar’s wife

It sure looks like a breach of ethics, but James Oliphant writes in the Los Angeles Times that there is no formal rule prohibiting a sitting Supreme Court justice from hobnobbing with a law firm set to argue a gargantuan case in a few months.

The day the Supreme Court gathered behind closed doors to consider the politically divisive question of whether it would hear a challenge to President Obama’s healthcare law, two of its justices, Antonin Scalia and Clarence Thomas, were feted at a dinner sponsored by the law firm that will argue the case before the high court.

The occasion was last Thursday, when all nine justices met for a conference to pore over the petitions for review. One of the cases at issue was a suit brought by 26 states challenging the sweeping healthcare overhaul passed by Congress last year, a law that has been a rallying cry for conservative activists nationwide.

The justices agreed to hear the suit; indeed, a landmark 5 1/2-hour argument is expected in March, and the outcome is likely to further roil the 2012 presidential race, which will be in full swing by the time the court’s decision is released.

The lawyer who will stand before the court and argue that the law should be thrown out is likely to be Paul Clement, who served as U.S. solicitor general during the George W. Bush administration.

Clement’s law firm, Bancroft PLLC, was one of almost two dozen firms that helped sponsor the annual dinner of the Federalist Society, a longstanding group dedicated to advocating conservative legal principles. Another firm that sponsored the dinner, Jones Day, represents one of the trade associations that challenged the law, the National Federation of Independent Business.

Another sponsor was pharmaceutical giant Pfizer Inc, which has an enormous financial stake in the outcome of the litigation. The dinner was held at a Washington hotel hours after the court’s conference over the case. In attendance was, among others, Mitch McConnell, the Senate’s top Republican and an avowed opponent of the healthcare law.

The featured guests at the dinner? Scalia and Thomas.

One wishes for some of the usual journalistic “balancing,” with someone to note who among the crowd represents the opposite side in the case, and someone else to note that the dinner had a lot of other sponsors.  But one might get uneasy thinking that the usual journalistic balancing can’t be mustered here, and that Scalia and Thomas just don’t care about appearances of ethical violations, if they can get away with it.

Lower court judges have clear ethical guidance on the issue, counseling against such appearances:

It’s nothing new: The two justices have been attending Federalist Society events for years. And it’s nothing that runs afoul of ethics rules. In fact, justices are exempt from the Code of Conduct that governs the actions of lower federal judges.

If they were, they arguably fell under code’s Canon 4C, which states,A judge may attend fund-raising events of law-related and other organizations although the judge may not be a speaker, a guest of honor, or featured on the program of such an event.“

Those rules do not apply to the nine people who sit on the nation’s highest court.

In those few times I lunched with Thomas and worked with him, when he staffed environmental issues for Indiana’s Missouri’s Sen. John Danforth, I found him an agreeable lunch companion and smart, but a great idealogue.  Had I known then what we all know now, I would have paid closer attention, asked different and sharper  questions, and kept notes.  And I might have dropped a few hints about history, and Caesar’s wife.  Supreme Court justices should consider themselves wedded to the American republic, and act accordingly.

What do you think, Dear Reader?  Was this a violation of ethics, even if not required by the rules that apply to Supreme Court justices?

6 Responses to Scalia and Thomas: Neither is Caesar’s wife

  1. Ed Darrell says:

    I think you slipped on the soap–John Danforth was senator from Missouri, wasn’t he?

    Yeah, Ralston-Purina heir, former AG in Missou . . . something slipped.


  2. mark says:

    I think you slipped on the soap–John Danforth was senator from Missouri, wasn’t he?
    We just saw the same sort of thing with insider trading committed by a congressman. But that was okay, because when Congress made the rule about insider trading, they exempted themselves, as they so often do.
    There are so many instances where no law was actually broken by a government official or corporate leader, but many people would find the action objectionable. However, in the case of Caesar’s wife, er…Thomas’ wife, I think the Judge was required to report something.


  3. Ed Darrell says:

    I asked whether readers find the actions of Justice Scalia and Justice Thomas to be unethical.

    Morgan takes great, ill-informed exception at great length to what he thinks I said, or what he misread — and as best I can make out, he thinks it’s probably a violation of ethics, but not a violation anyone should worry about because, he claims, Congress okayed the violation in the case of Supreme Court justices.

    Congress plays no significant role in these issues. Judicial conduct is governed under the code adopted by the U.S. Judicial Conference — that is, the judges themselves.

    From the start, Morgan is off on the wrong foot, chasing the wrong wild hare premises down the wrong path.

    Morgan all but concedes the case that the two judges violated Canon 2 of the code:


    (A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
    (B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness.
    (C) Nondiscriminatory Membership. A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.

    I asked the question, and Morgan rakes me over the coals for even asking. Did Morgan bother to read even the headline I used?

    What’s Morgan hiding? What does he think Thomas and Scalia are hiding? We can’t even ask?

    Morgan’s groupies are happy to suggest the two Obama appointees should recuse themselves from the health care case because . . . well, let’s see: It can’t be because they’re dining with the lawyers for one of the sides at the expense of those lawyers, who arranged to “honor” the judges; it can’t be because they participated in the case, because they didn’t . . . well, just on general principle. But Thomas and Scalia? No, general principles that apply to all other federal judges should not apply to them. Those guys seem to be arguing that no one would ever mistake Scalia or Thomas for a public servant who, like Caesar’s wife, should strive to remain above all suspicion.

    I don’t think these justices are so corrupt as their so-called defenders let on.

    Again I wonder, what do you think, Dear Reader?


  4. Black Flag® says:


    Of course it is, but the whole concept is unethical to begin with.

    The only difference is this one -for whatever reason- crosses some self-imposed line of accepted unethical behavior and unacceptable unethical behavior

    Such a line is completely arbitrary and whimsical, since your test of ethics cannot be applied – it is ALL on the unethical side, so ethics, in itself, has no measure.

    So as you pointed out, it is unacceptable unethical behavior of a lower judge, but has been an acceptable unethical behavior for other judges – and it all depends on your mood of which one is accepted or not.

    But it is all evil.


  5. […] of the clarion calls have to do with public officials abusing their stations. Ed Darrell says it stinks to high heaven that Clarence Thomas and Antonin Scalia are eating dinner with people. Sarah Palin says something […]


  6. Jeffrey Shallit says:

    Definitely a violation. But then, Scalia has shown repeatedly that he has contempt for civilized behavior.


Please play nice in the Bathtub -- splash no soap in anyone's eyes. While your e-mail will not show with comments, note that it is our policy not to allow false e-mail addresses. Comments with non-working e-mail addresses may be deleted.

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: