WASHINGTON — U.S. Supreme Court justices don’t often seem too concerned about appearances.
Politico reported that Justice Brett Kavanaugh attended a private holiday party on Friday night at the home of Matt Schlapp, chairman of the Conservative Political Action Coalition, and that attendees included Stephen Miller, whose group America First Legal Foundation has interests in cases now pending before the court.
Kavanaugh’s party-going raises questions about when a justice’s personal relationships cross a line and become problematic. Democrats have recently renewed calls for sitting Supreme Court justices to follow a formal judicial code of ethics.
“Supreme Court justices should be extraordinarily careful in not only having actual ethical difficulties but having no appearance of an ethical conundrum as well,” said Tonja Jacobi, a professor at Emory University School of Law.
Especially now, given that “the legitimacy of the court at the moment is taking a severe beating,” she said.
The justices have been criticized in the past for appearing and speaking before audiences that share their ideological views. For example, Justice Sonia Sotomayor in June gave a talk at an event hosted by the liberal American Constitution Society.
American’s trust in the judicial branch headed by the Supreme Court fell 20 percentage points from two years ago, according to a Gallup poll released in September, which found only 47% of U.S. adults have a great deal or fair amount of trust in the judiciary.
Attending a party with people who “live, eat, and breathe conservative political action” is either reflective of a level of insensitivity to that development or indifference to it, said Charles Geyh, an Indiana University Maurer School of law professor.
“This is the worst possible time for this,” he said.
Though Supreme Court justices aren’t bound by the judicial code of ethics for federal judges, Geyh said they closely adhere to it and the code says judges should avoid impropriety and the appearance of impropriety in all activities.
In the larger context of a court that is struggling with public support for the institution and is at risk of losing legitimacy, this is at a minimum a poor idea and potentially a violation of judicial ethics, he said.
The Supreme Court’s Public Information Office didn’t respond to a request for comment. Schlapp and the American Conservative also didn’t respond to requests for comment.
The news comes a week after a Christian advocacy group’s former leader was questioned by the House Judiciary Committee about his allegations that Justice Samuel Alito leaked the outcome of the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby Stores to a member of his network during a private dinner at the justice’s home. The decision let private companies claim religious exemptions from the mandate in the Affordable Care Act, which requires corporations to cover birth control.
Rev. Robert Schenck said fuzzy ethics rules make it easy to forge relationships with and subtly influence Supreme Court justices.
Schenck, whose allegations were first reported by The New York Times, said he recruited older, wealthy donors to befriend and influence justices who shared similar social interests and religious ideologies.
Supreme Court legal counsel Ethan Torrey told lawmakers in a Nov. 28 letter there was nothing to suggest Alito’s actions violated ethics standards.
“Relevant rules balance preventing gifts that might undermine public confidence in the judiciary and allowing judges to maintain normal personal friendships,” Torrey told Sen. Sheldon Whitehouse, D-R.I. , and Rep. Henry Johnson, D-Ga.
The Supreme Court has heard arguments in several high-profile cases this term already, including challenges to affirmative action and a case that seeks to give state legislatures more power to set federal election laws. America First Legal Foundation filed friend-of-the-court briefs in both cases. The court has yet to issue a decision in either dispute.
