Justice Alito at the Bartley Dinner: much ado about nothing?

There’s been a lot of blogging about Justice Alito’s appearance at a dinner run the The American Spectator, which is a 501(c)(3) entity.  It appears that the dinner was a big event for the magazine and at the magazine’s website was the link to the “donate” button.

But, as far as I can tell, Alito attended the dinner, was not a keynote speaker or honoree, did not solicit funds for the organization, did not permit his name to be used in fund raising, and did not solicit membership.

Quite often I attend the big gala fundraiser/lunch/dinner for various public interest law groups, which usually have progressive politics, and unless I’m mistaken I’ve seen judges attend in the same matter as Justice Alito did—with no personal participation in the solicitation of funds or membership.

Although the Supreme Court justices are not strictly governed by the Code of Conduct for United States Judges, for the sake of argument let’s suppose that Justice Alito was governed by it.  Having read Canon 4 along with its commentary, and having read advisory opinions 32, 35, 42, and 91, I don’t see how Alito’s attendance was improper under those rules.  If I’m wrong about that, I’d appreciate being told so.  If you have cites, all the better.  

I'm also assuming that although the magazine has a conservative viewpoint, it's not a "political organization" within the meaning of Canon 5A and hence the prohibition on attending dinners or buying tickets for dinners doesn't apply either.  ("The term 'political organization' refers to a political party, a group affiliated with a political party or candidate for public office, or an entity whose principal purpose is to advocate for or against political candidates or parties in connection with elections for public office.")

I also don’t see how it benefits society if judges couldn’t even attend, or were afraid to attend, say, a dinner put on by ACS, the Brennan Center, the Federalist Society, etc.

Comments are welcome, and comments pointing out errors in my analysis are particularly welcome.

Comments

[Marcia Wolff]

Could someone confirm for me that indeed there is no formal Code of Conduct governing U.S. Supreme Court Justices? How can this be? By what standards are the Justices expected to comport themselves in conflicts of interest/ethical matters? Thank you.

[John Steele]

Marcia,

As I understand it, neither the Congress nor the President can easily order the Supreme Court to do very much, due to separation of powers principles. The Supreme Court has not adopted the Code to govern itself. At the same time, I imagine that the members of the court would say that they take judicial ethics quite seriously, even if the enforcement and application of the norms is done by the court itself.

[Bryant Cavers]

Can the legislature of the executive or both compel SCOTUS to abide by the judicial Code?

John, thanks for the forum. However, I am curious as to why the American Spectator or the Federalist Society would not be considered political groups. Your parenthetical notes that to be considered a political organization all one need do is: be a group affiliated with a political party (GOP/Tea Party) or candidate for public office (what about multiple GOP and Tea Party candidates), or an entity whose principal purpose is to advocate for or against political candidates or parties in connection with elections for public office.) (Isn't that what these two groups do?) If that is true, then groups such as the Chamber of Commerce, and the Koch Brothers and Karl Rove's GPS groups have to be considered political as well, right, as they advocate for a particular party for public office, attack a particular opponent running for public office, and outside of the Chamber of Commerce, it's always another conservative GOP or Tea Party group that they support. Of course this is in the news cycle now since Alito attended the dinner for the American Spectator, Thomas and Scalia attended the Koch Brothers seminars on how to take advantage of Citizen's United, and of course there is Ginny Thomas's Tea Party group. In and of itself I would want to agree that on its face nothing may be wrong, but if billionaires give to conservative groups to elect friendlier judges and politicians to their agendas and goals, why have current judges at these junkets? Might it be a conflict of interest for a sitting justice to have to tell his fellow Federalist Society member that he can't allow him to continue to enrich himself, and must abide by EPA regulations or the like. How likely is it that the same captains of industry that invite them to their seminars and dinners would get unfavorable results from them, and why is that not an obvious conflict of interest? Since Justice Chase was impeached, justices have shown caution when to avoid the appearance of political partisanship, except the Roberts court. The Roberts court sides with business 80% of the time, and it was disheartening to learn that Scalia and Thomas were invited with people whose stated aim was to obstruct a democratically elected president's agenda by using their combined capital. How is this ethical?