U.S. Supreme Court critics are highlighting Justice Samuel Alito’s behavior on the bench last week—specifically his eye rolls and head shakes—as a prime example of why the nation’s highest court needs some more rules.
Alliance For Justice, a liberal watchdog group, has linked Alito’s physical reactions last week’s opinion readings to the need to subject Supreme Court justices to the Code of Conduct for United States Judges. The code, which guides the behavior of lower federal court judges regarding recusals, fundraising and demeanor, has never applied to the justices themselves, although they have said that they look to it for guidance.
Meanwhile, senators Richard Blumenthal (D-Conn.) and Chris Murphy (D-Conn.) and Representative Louise Slaughter (D-N.Y.) pledged to introduce a bill that would bind the Supreme Court to that code of conduct.
“As the court prepares to issue landmark decisions on gay marriage, affirmative action and voting rights that will directly affect broad swaths of the American public, we cannot afford to risk a further erosion of trust in this esteemed body's commitment to the rule of law,” the members of Congress wrote in a letter to the editor published in The New York Times. “The highest court in the land should be bound by the highest ethical standards.”
Judicial ethics expert Stephen Gillers at New York University School of Law said that Chief Justice John Roberts let it be known in his last state of the judiciary speech that such an effort could offend separation of powers.
“I don't think Congress has the will to find out,” Gillers said. “Further, some justices, but not all, insist that they comply with the code voluntarily.”
The alliance on Monday highlighted Alito’s reaction while Justice Ruth Ginsburg read a dissent in two cases on June 24, as described by The Atlantic’s Garrett Epps: “Alito pursed his lips, rolled his eyes to the ceiling, and shook his head ‘no.’ He looked for all the world like Sean Penn as Jeff Spicoli in Fast Times at Ridgemont High, signaling to the homies his contempt for Ray Walston as the bothersome history teacher, Mr. Hand.”
The alliance argued that the code says judges “should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.”
The group added: “Indeed, a case can be made that Justice Alito’s conduct could have violated the Code of Conduct for United States Judges—if not for the fact that the justices of the Supreme Court are the only federal judges in the U.S. who are exempt from that code.”
Previously, Alito previously was seen on television shaking his head as President Obama decried the Citizens United v Federal Elections Commission ruling during his 2010 State of the Union address. “One of the factors when determining if disciplinary action is appropriate is ‘whether there is a pattern of improper activity,’” the alliance said.
Gillers said that if the reaction happened as reported, “it's boorish and discourteous, but it is not unethical—at least I've never seen any primary or secondary authority that says it is.”
Lawyers, however, have been disciplined for offensive physical reactions to rulings in court, Gillers said, citing a contempt case in which a lawyer laughed, rolled his head and threw himself back on his seat in response to adverse ruling. In re Matter of Daniels, 570 A.2d 416 (N.J. 1990). The lawyer's reaction threatened the "dignity" and "authority" of the court, Gillers said.
Todd Ruger is a reporter for The National Law Journal, a Legal affiliate based in New York.