Bloomberg LawConstitutional law scholar David Super, a professor at Georgetown Law, discusses the gaps in the Supreme Court’s new code of ethics. Karen Dunn, a partner at Paul Weiss, discusses her civil case over the violence at the 2017 Charlottesville Unite the Right rally and danger signs seen in recent protests. June Grasso hosts.
This is Bloomberg Law with June Brusso from Bloomberg Radio.
You have to take me to show according to the code of the Order of the person.
Your return to show was not part of our negotiations nor our agreement.
So I must do nothing.
And secondly, you must be a pirate for the Pirate's code to apply, and you're not. And thirdly, the code is more what you're called guidelines sell actual rules. Welcome aboard the black perde mis Turner.
The Supreme Court's new ethics code is sort of like the Pirate's code, more guidelines than actual rules. For the first time in its history, the Supreme Court has adopted a code of conduct, responding to pressure from a stream of ethics controversies that have undercut its public standing and shown a light on the justices friendships and financial dealings. But the code won't necessarily mean any changes in the way the nine Justices conduct themselves. In fact, the Justices basically admit that in the introduction, saying, for the most part, these rules and principles are not new. Joining me is constitutional law scholar David Souper, a professor at Georgetown Law, is anything different for the Justices today than last week because of this ethics code.
This is in astute pr move, that's all it is. Well, they've done a number of disclosures of extremely questionable activities by several justices, most prominently Justices Thomas and Alito, receiving valuable trips other financial favors from rich, ideologically committed donors, many of whom had business in front of the Court. So the Court, I think, felt that it needed to do something. There were justices calling for an ethics code, and my assumption is that the compromise they reached between no ethics code and an ethics code was something that is in name an ethics code, but that has few with any of the functions of an ethics code.
In the statement of the Court that precedes the code, there's a little bit of griping about this misunderstanding that justices regard themselves as unrestricted by any ethics rules. Go figure, and it says the Court has long had the equivalent of common law ethics rules derived from a variety of sources, including statutory provisions, the code that applies to other federal judges, ethics advisory opinions, and historic practice. Does that statement mean that these are the same rules that Justice Clarence Thomas, for example, followed in accepting all those luxury trips, the underwriting of the RV, etc.
The fact that he did that and that there has been no action about that on the Court suggests that this so called common law ethics rules are largely useless. If any judge on a lower court had done this, they would be facing serious problems.
There's no enforcement mechanism at all in these rules, so the public can file a complaint or a review of alleged ethics breaches.
That's correct. The failure of this code is twofold. One, its content is extraordinarily weak, and second, there is no procedure for enforcing it. It is certainly true that the Supreme Court is not and should not be, subject to the executive branch or the legislative branch, but it could set up its own enforcement mechanism. It could, for example, as a process for people to file com plint, have an office that investigates those complaints and makes recommendations to the court, and a procedure for the Court itself to act on these matters. It could also have a procedure where a justice's behavior is particularly problematic of referring that information to Congress, which does have the power to begin impeachment proceedings.
What happens if a lower court judge or an appellate judge violates the Code of Ethics. Someone complains that they violate the Code of ethics. What happens? Then?
There are a number of things that can happen. They can be removed from the case that causes the problem against their will by the chief judge of their court or by other judges on the court if they're themselves the chief judge. They can be investigated and potentially sanctioned or unethical conduct, and the matter can be referred to Congress for impeachment proceedings. In Congress does impeach lower court judges.
There have been a lot of complaints about the justices not recusing themselves in cases where it seems like they should. So when it comes to recusals, the Justices include a line that's not in the Code of Conduct for United States judges. It says, quote, the rule of necessity may override the rule of disqualification. Tell us what they mean by that.
What they are basically saying is that even if they have a conflict of interest, or some other compelling reason why they shouldn't sit on a case, that the desirability of having nine justices sit on a case may justify disregarding that conflict of interest. The rationale is that while we have many lower courts and many lower court judges, and most lower courts don't sit as a complete body, Ever, the Supreme Court or it is unique, and if you have a decision rendered by less than all of the justices, it may not get five votes for any result, and that leaves the state of the law uncertain. That's a problem the Supreme Court has dealt with many times over the years when justices have properly recused themselves for any number of reasons, and occasionally it does create pickups in the law or uncertainties. But the same thing can happen when all nine justices sit and they can't agree on any one resolution to a case. So this is not a huge problem, but it does signal a lack of seriousness of that ethic.
Well. Also, better to have a hiccup in a case than to have a justice sitting who should be recused. Also, while lower court judges are told they quote shall disqualify when their impartiality might be questioned. The Justice has changed the word shall to should disqualify. So are their rules for accusal less stringent than the rules that they set out for lower court judges.
Yes, they are. Indeed, the word shall does not appear anywhere in their code. It appears several places in the code for lower court judges, but nowhere in this new code for the Supreme Court. So they've chosen not to live by the standards they impose on lower court judges. The standards they impose on lower court judges are appropriate. I wouldn't want to see them loosened. But it's telling that they're unwilling to live by the same standards themselves.
So let's take the major tax code case that's coming up where Justice Alito was interviewed a friendly interview for the Wall Street Journal by one of the lawyers. Under this code, should Justice Alito recuse himself from that case?
The code is rather vague. I think as a matter of common sense, Justice Alito absolutely should. He was under public criticism and this attorney gave him help in defending himself against that public criticism, which is a very valuable thing. If I was being criticized the way Justice Leader did, I would prefer that friendly interview to one hundred thousand dollars. So it is giving a justice something of great value as a case that's involving you as going in front of the court. It seems obvious he should refuse himself, but the code is so vague that it certainly does not compel him to do so and provides no means for the public to complain if he doesn't do so.
Individual justices decide whether or not they should recuse themselves. Couldn't they have put a mechanism in where at least it has to be discussed with the rest of the court.
They certainly could, and there's a precedent for this in Justice William O. Douglas's last years on the court. The other justice conclude that his mental capacities had decayed too much for him to cast the deciding vote on cases, so they all agreed they would not decide a case where his vote was crucial. They proceed normally where his vote didn't matter, but he would never be allowed to be the fifth vote on a case, and that was agreed to by the Liberal justices Brennan and Marshall, as well as the conservative ones. That same approach could be handled here. You could say that if a justice insists on sitting on a case where that justice is compromised, the other justices can act to reject the case, to cancel the court's granted review in the case.
What does the code say about the acceptance of gifts.
The code is very vague about that as well. It says that the justices shouldn't accept gifts or they should not participate in matters where their impartiality would be compromised, But it leads them to decide whether their impartiality is compromised. I could ask you about the merits of Bloomberg and you could say, well, I think I'm not a completely unbiased opinion. You could ask me about the merits of georgetowne because they will I have a completely unbiased opinion. But allowing people to decide that for themselves is contrary to the whole purpose of ethics tools.
Coming up next on the Bloomberg Lawn Show, I'll continue this conversation with Georgetown law professor David Super. Does this Code of conduct provide any more transparency into an institution that's been shrouded in secrecy? I've been talking to Professor David super of Georgetown Law School about how this new code of conduct will affect the actions of the justices, if at all, would this code have prevented the Conservative justices from a ten t that Federalist Society gali last week that was headlined by Justice Amy Cony Barrett.
No, it doesn't prevent much of anything, and it certainly wouldn't prevent that. And a galla like that is raising money for an organization that is pursuing a litigation agenda before the Court that is directed at the Court, So you are helping fund one side of many cases that you will be hearing. That would seem to be entirely inappropriate. We wouldn't want a judge to be making contributions to the lawyers on either side, and being a headliner at a gala and boost ticket sales has the same effect transparency.
So the Court has always been shrouded in secrecy. The public doesn't know how it goes about its work really behind the scenes, and that's been a critique of the Court and this there's no transparency in this either. There's no way to tell even whether a justice has violated the code. At least until a Pro public A story or something comes out about it. So there's just no way of knowing still whether they're following this or not unless we see, oh they went to the Federalist Society Gala.
Yeah, And this research by Pro Publica and others is extraordinarily exhaustive. They're often are going to be gaps in the information that they can't possibly fill, and there's no official that has any capacity to investigate anything that could fill those gaps. So no, this is not at all transparent, and this is going to lead to further erosion of public confidence in the court. Things of this kind that came out in earlier generations and the justice's careers. Justice ab Fortis was forced off the court or involvements with potential litigants that were far thinner than the ones we're seeing right now, and members of both parties and justices across the ideological spectrum insisted that he stepped down, and he ultimately did. We've completely changed our practices and our ethics standards are not keeping up.
So at the end, it seemed to me like they sort of took everything back. We take it back, because they had a line from Justice Tom Clark in nineteen sixty nine that judges must bear the primary responsibility for acquiring appropriate judicial behavior, and then the Court added the same is true for justices. So it's up to us. So all that we've just said means nothing.
Yes, and it's certainly true that the Supreme Court is and must be the primary guardian of its ethics, but it does not have to be on an individual judge basis. If I'm trying a court case in federal district court and the judge assigned to my case does something unethical, something indicating an improper bias for the other side, I can ask that judge to refuse, and if the judge refuses, I can go straight to the chief Judge and ask them to order that judge to refuse. The way this is set up, it's entirely up to the individual justice, and there's no procedure for investigation, no procedure for presenting the facts to the other justices, no real opportunity for the other justices to act collectively to uphold the Court's ethics. This is pluding the Supreme Court's ethics at the lowest common denominator.
So this has been years in the making. We've heard about they're working on the code. They're working on the code. Senate Democrats had open debate in a committee Judiciary committee about subpoenas for two allies of the Court's conservative justices who funded or arranged for luxury travel for Justices Thomas and Alito. Does it seem pretty convenient that this is coming out now? Are they hoping to stop with this code of ethics any congressional action and should they be allowed to well?
The Court's announcement of this essentially presented as a pr move. They say that they've always been bound by ethical standards and this isn't changing anything, and that the only thing they're concerned with is public views, which they characterize as misunderstandings that they are behaving unethically. So I don't think we should think of this as changing. This is certainly a response to their public relations problems and attempt to have off congressional action. I don't see congressional action as terribly likely in the short term, because for now most Republicans have been rallying around the justices rather than holding them to the same standards that they held Justice Douglas and Justice Bordis. But this is certainly an effort to dislate the momentum of a push for ethics standards.
I'm wondering if this code is worse than no code, because it gives the Justices sort of cover the opportunity to say, well, we put out an ethics code, so Congress stay away and public rest assured that we are following ethics rules.
I think it could go either way. People could be confused and thinking that this is a real ethics code. On the other hand, it puts their beliefs out there in public. It makes very clear that they do not hold themselves the same standards as lower judges, and if that's their position, then we're entitled to debate that and decide whether we think that's acceptable.
Credit Senator Sheldon Whitehouse, who has been a vocal critic of the justices, said this is a long overdue step by the Justices, but a code of ethics is not binding unless there's a mechanism to investigate possible violations and enforce the rules. The honor system has not worked for members of the Roberts Court. You mentioned how if some of these scandals had happened in the past, there would have been so much pressure on the justices to correct things. Now. Pressure has just gotten us this toothless code of conduct. And I wonder if it's because there's no pressure from Republican lawmakers because they're so happy to have a court finally with a super majority of conservatives, and Democratic lawmakers might feel the same if the Court had a supermajority of liberal justices.
Liberal justices and justices across the ideological spectrum were all in favorite getting read of Justice for us, even though he was very liberal and was replaced with a conservative by Richard Nixon, and the liberal justices Brennan and Marshall pushed Justice Douglas off the court because they thought he didn't have his faculties at a proper level. Republican justice didn't push Chief Justice Ranquist off the court when he was at least as impaired as Justice Douglas was at an end, So it's not completely symmetrical. There are good government values that have more saliens at the moment with Democrats than with republics. There are plenty of ideological Democrats that would put anyone up there and not care about the ethics at all. But there's a part of the Democratic coalition that's willing to be assertive about ethics, and I'm not seeing that very much among Republicans today.
I always appreciate getting your viewpoint on these kinds of issues. Thanks so much, David. That's Professor David Super of Georgetown Law. I'm Juan Gross and you're listening to Bloomberg. I just heard loudness almost like thunder tek twitches still on fire.
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It wasn't some sort of freak accidents where this car ran into people. There was overt planning how to prepare for violence and make this appear as if its self defense.
The HBO documentary No Accident chronicles the civil case filed after the deadly Unite the Right rally in August of twenty seventeen in Charlottesville. Virginia, who was filed against white nationalist leaders and organizations on behalf of plaintiffs who suffered injuries while counter protesting. Joining me is the lawyer who was co chair of the civil lawsuit that successfully held accountable the white supremacists responsible for the violence in Charlottesville. Karen Dunn a partnered Paul Weiss. She's written in op ed because in observing the protests happening around the US today related to the crisis in the Middle East, she noticed a disturbing theme. Karen, before we get to your op ed and today, to put it into context, tell us about the lawsuit over Charlottesville.
Well, shortly after the events of August eleventh and twelfth, twenty seventeen in Charlottesville, Virginia, which was the violence at the night Raat rally, we sued twenty four groups and individuals who we contended were responsible for planning and executing the violence that weekend, and the suit, you know, proceeded slowly at times, partially due to the difficulty in collecting evidence from defendants who did not always respect the rule of law, and partially because of COVID, but ultimately we were able to bring the case to trial. We tried the case in late twenty twenty one, and it resulted in a verdict against each and every one of the defendants of liability, and specifically, the verdict was they had engaged in a conspiracy to commit racially motivated violence.
The jury couldn't reach a verdict on two federal conspiracy charges over whether the organizers conspired to commit racially motivated violence or whether they had knowledge of it and failed to prevent it. Do you have any feel, I assume you talk to the jurors after the trial why they weren't able to reach a verdict on those counts.
We actually were not able to talk to the jurors after the trials, So we're never going to know the answer. You know, our working theory is it was some sort of compromised verdict to get out by Thanksgiving, because because there was not a heck of a lot of difference between the state claims where the jury did find liability in the federal claims where they didn't, And so with the state claims, they found uh that there had been a conspiracy with every one of the defendants to commit racially motivated violence, and they awarded compensatory and punitive damages, which is very significant. And then they hung on the federal counts brought under the KKK Act, and so there's not really uh, you know, legally it doesn't that doesn't really make sense, but that's that's what they did, so there must have been some reasons for it.
Juries don't always make sense. So, right, what happened as far as collecting damages? Did you collect any damages?
Yeah?
So the damages are still being litigated because under the Virginia State Statute there's a cap as to uh as to damages. So we're still litigating that and that will probably take some time to play out.
One is serving a life sentence for murder. Is there money to be had?
So we don't know, is the short answer to your question. You know, the individuals probably do not have very much money. The groups is a better question. We sued a number of white supremacists and neo Nazi organizations and they, like, we do have some money that the individuals wouldn't have. I mean, one of the goals behind the suit was, you know, not just to go after Field, who of course, was the individual who drove the car into a group of peaceful counter protesters. And killed Heather Higher and injured so many other people. It was also to go after the leadership of the movement, and so that was the very interconnected web of individuals and groups who we.
Sued forgetting about the money. What impact do you think the trial has had. Has it helped to quell white supremacy in any way?
Yeah, So I'll just take this in a couple of parts. One is, I think we know that there was a deterrent effect of the case. So Charlottesville that everyone's aware of was actually called Charlottesville two point zero, and that's because there had been a prior event called Charlotte'sville one point zero, and the idea was to keep coming back. There also had been prior to Charlottesville a different event in Berkeley called the Battle of Berkeley, and the white supremacist called Charlottesville the Battle of Charlottesville. So the idea was to have these battles as one catalyst to an eventual race war. That is one of the goals of some of these neo Nazi and white supremacist groups. So we know that the lawsuit had a deterrent effect because there would have been more of these events than they just did. Not happen. We also had a deterrent effect on the defendants in the case, who were you know, really leaders in the movement. That said, I think it's pretty clear that these were organizations, many of them still exist, and that the movement is you know, continues to exist. We didn't you know, wipe it out with this lawsuit, obviously. And I think that the movie is called No Accident. It was released on HBO on October tenth, so just very recently. The movie is a very good tool for people to see what are the motivations of these groups and also what are the tactics of these groups? And I think eventually, you know, the effect of the case and the movie will be to raise awareness so that people understand that these groups are coordinated, that they are connected, and that they're very tactical, and so you know, the awareness of that I think will help to reduce the amount of extremist violence that we see.
So, Karen, you recently wrote an opinion piece. You wrote that white supremacists and neo Nazi groups are showing up at pro Palaced Indian rallies in this country. First of all, how.
Did you discover that?
Well, I looked on the Internet, for one, and you know, there are white supremacist groups that are really exploiting the divisions that have come to the surface following October seventh, and so they are showing up at events, and they are also you know, sort of celebrating what happened on October seventh. And I looked back at what some of the defendants in our lawsuits had to say, and you know, almost immediately after October seventh, many of them chimed in to commend what had happened, and the attacks were portrayed by hamas. And so one of the things that we learned as we went through the mountain of evidence that we unearthed leading to the violence in Charlottesville is how motivating to the white supremacist movement anti Smitism. And so the recent you know, dramatic uptick and anti semitism, anti Semitic incidents are up something like you know, almost four hundred percent presents a real opportunity for mobilization of the white supremacists and neo Nazi movements in America. One of the things that we learned in litigating the case in Charlottesville is that anti Semitism is used by white supremacist groups and neo Nazi groups tactically, which is to say that these groups hate all non white groups and their supporters, but they hate to Jews the most. And so there's actual guidance put out to white supremacist groups that they should use anti semitism to rally the troops to the cause.
What can be done, what should be done?
I think the reason to talk about these issues and to write about them is to really raise awareness. You know, we've obviously seen a historic uptick in anti semitism in the United States that resembles something more, you know, out of Europe of a different time, and there may be a temptation on the part of them to think about anti Semitism as a problem for Jewish people and only Jewish people. But what we saw in Charlottesville was anti Semitism Jewishers, you know, the chance Jews will not replace us, the chance of blood and soil to really mobilize a movement that is stilled of racial hatred for all non white groups, and that resulted in planned violence, extremist violence that you did not discriminate between one group or another. It was really aimed at all of us, and certainly you know, destroyed a lot of lives, injured a lot of people, terrorized a college town, and affected our whole country. And so the lesson that I think people ought to take from this is that this isn't a problem just for Jewish people or just for one group. This is a problem for everybody, and we have to be aware of that because if we're not, and these sentiments are allowed to fester and grow and spread, data is going to create opportunities for violence that will affect everybody. And the key thing that I'm trying to explain is that there is a coordinated, connected, and tactical movement of who wants to take advantage of those opportunities.
Thanks for being on the show, Karen. That's Karen Dunn, a partner Paul Weiss, and that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg,
