Justice Gorsuch's Secret Speech

The Hill has my new essay this morning, about Justice Gorsuch's closed-door speech to the Florida Federalist Society convention, and why SCOTUS needs a code of conduct to cover similar situations. Here is the gist:

It is impossible to know what U.S. Supreme Court Justice Neil Gorsuch was thinking when he decided to bar the press from his recent speech to the Florida chapters of the conservative Federalist Society, but it is safe to say that the appearance of political neutrality was not his main objective. The agenda for the convention, held last Friday and Saturday in Orlando, included speeches by former Vice President Mike Pence and Florida Gov. Ron DeSantis, as well a session titled “The End of Roe v. Wade,” an issue that is currently before the Court, and another called “Redistricting in Florida.” Gorsuch has his critics and defenders, but there is no conclusive answer to whether he crossed an ethics line because the Supreme Court has never adopted a code of ethics. 

For that reason, I recently joined two dozen other legal ethics scholars in an open letter to Roberts, urging him to move forward with the adoption of a code of conduct for the Court.

A lower federal court judge would have been required to ascertain whether the registration fee, plus any sponsors’ contributions, amounted to fundraising beyond the costs of holding the conference. Supreme Court justices currently have no such obligation. I asked the Supreme Court’s public information office if Gorsuch had determined whether the Florida conference was a fundraising event, and whether he was aware of any sponsorship contributions beyond the cost of attendance, but received no reply. 

The specific provisions of a Supreme Court ethics code would be up to the justices, whose public approval has been plummeting in recent years. As my colleagues and I wrote in our open letter, “even if primarily aspirational [a code] would have a broad salutary impact, assisting current and future members of the Court to transparently address potential conflicts and other issues in a way that builds public trust in the institution.” Supreme Court ethics should not be a black box.

You can read the entire essay here.

Comments

[anon]

I would accept these views more readily but for the obvious fact that Lubet is always attacking those he perceives as his political enemies and ignoring the faults of those he considers his friends.

As noted by Richard L. Hasen, in his essay, CELEBRITY JUSTICE: SUPREME COURT EDITION, it is justices from the "liberal wing" top the list of attention seeking media junkies. And, as Hasen so astutely writes:

"There also seems a partisan element to the public’s views of appearances. Liberals may find conservative Justices’ appearances at a Federalist Society event as undermining the rule of law, and conservatives may find liberal Justices’ appearances at an American Constitution Society event the same way. It probably does not help that only conservative Justices speak at the annual Federalist Society
events and only liberal Justices at the American Constitution Society."

The troubling aspect of Lubet's work is that he doesn't seem to recognize that a coin has two sides. He doesn't seem to realize that his partisan sniping undermines the court.

If he found fault in an objective, unbiased way, then his calls for "reform" would be more salient. But, he quite obviously wants a "code" to use to attack "conservative" justices. He will not apply this "code" fairly.

For that reason, I would reject any proposal by Lubet in these respects. His partisanship renders his views unreliable.

[other anon]

Anon
This type of ad hominem attack on a person we disagree with has become all too common, and nothing more than a problematic deflection. The justices on this court have engaged in political conduct (which you rightly point out). It doesn't matter that Prof Lubet has highlighted the most recent poor decision by a justice. Your visible bias against him weakens whatever credibility your comments might otherwise have.

[anon]

other anon

I disagree. Prof. Lubet is a critic. He criticizes others as an occupation. Is it not fair that someone apply some of the same close scrutiny to his work that he applies to others?

Sure, it is uncomfortable. But, for someone who lives by throwing stones at others, is an observation of his bias really all that terrible?

Lubet presents himself as a fair minded critic. But, he is anything but. He doesn't point out the foibles and faults of his favorites, he only picks the nits when he finds an "enemy" to attack.

Do you really think is it not relevant, when someone calls for "aspirational" rules, to point out to what use that person intends to put those rules?

And, when you speak of divisive attacking, do you not realize how much damage is being done by "scholars" who don't objectively approach the issues, but simply use a patina of knowledge about certain subjects to undermine those whom they perceive to be their POLITICAL FOES?

There once was a time, perhaps you can recall it, when more "scholars" worked to be wise, not to "win" by demonizing their "enemies." Today, it is all MSNBC or CNN type approach.

You decry an "attack on a person we disagree with has become all too common." Your solution is to insulate Lubet from scrutiny? I quoted from a review article that was spot on. Please, read it, relate it to Lubet's essay, and let us know who is engaging in the ad hominem here.

[anon (as an adverb)]

https://leiterlawschool.typepad.com/leiter/2013/11/what-an-ad-hominem-argument-is-and-isnt.html

"Your visible bias against him weakens whatever credibility your comments might otherwise have." Do you see the irony?

Additionally, I have found academics' overuse of the word "problematic" over the last few years, especially when merely used to mean "I don't like what you said/did," to be problematic.

Perhaps we need to "interrogate" this phenomenon, in ways that do or do not conform to the Geneva Convention.

[other anon]

I accept that Lubet criticizes others he disagrees with. I am not so naive to think neutrality or a lack of bias exists that much anymore. But your comment "patina of knowledge" equating to a thin layer of knowledge is a dead-give away that you are in a position of attacking rather than considering, and of only wanting to be spoon-fed an analysis that would seemingly justify your position in the world. As for the use of words like "problematic" this isn't new. In 1974 my first book was given a rave review by a critic who then added that one chapter was problematic. It is a kinder substitute for the terms "breathless" or worse that have appeared in political discourse.