Reports that two Supreme Court Justices have attended seminars sponsored by the energy giant and conservative bankroller Koch Industries has sparked a mild debate over judicial ethics.
On Tuesday evening, the New York Times reported that an upcoming meeting in Palm Springs of "a secretive network of Republican donors" that was being organized by Koch Industries, "the longtime underwriter of libertarian causes." Buried in the third to last graph was a note that previous guests at such meetings included Supreme Court Justices Antonin Scalia and Clarence Thomas, two of the more conservative members of the bench.
It's not rare for a Justice to attend a seminar sponsored by a group with judicial or political interests. Members of the court, for instances, often speak at academic institutions or think tanks. Virtually all companies, meanwhile, are affected by the judicial branch. So long as Scalia and Thomas did not participate in overt partisan activities, there would be no apparent conflict of interest.
"There is nothing to prevent Supreme Court justices from hanging out with people who have political philosophies," said Steven Lubet, a professor of law at Northwestern University who teaches courses on Legal Ethics.
But the Koch event appears more political than, say, the Aspen Ideas festival. In its own invitation, it was described as a "twice a year" gathering "to review strategies for combating the multitude of public policies that threaten to destroy America as we know it." In addition, it's not entirely clear what the two Justices did at the Koch event. A copy of the invitation that served as the basis for the Times's report was posted by the liberal blog Think Progress. It provided no additional clues. A call to the Supreme Court and an email to a Koch Industries spokesperson meanwhile were not immediately returned.
Faced with a lack of concrete information, and cognizant of Koch's fairly intense history of political involvement, legal ethicists are urging for more disclosure.
"This is certainly worth more reporting," said Stephen Gillers, a professor of law at New York University. "It is intriguing because the Koch brothers are so politically active and identify with a point of view. I know I would be curious to know exactly what forums the Justices went to. Obviously they could not go to a strategy session about how to elect more Republicans. On the other hand if it was a forum on the meaning of the First Amendment and it didn't involve strategy or fundraising a Justice could appear… It's fascinating and it merits more reporting."