Supreme Court Justices Scalia and Thomas have attended meetings sponsored by the ultra-conservative Koch brothers. Scalia in public appearances has opined on issues involved in pending cases that his biographer, Bruce Allen Murphy, argues compromised either the fact or appearance of neutrality. Four Justices have recently written best-selling books. A number of them are out there giving media interviews, appearing before bar groups, university audiences, private clubs, and even in shopping centers. To promote sales, Justices Breyer, Sotomayor and Scalia have been talking “inside baseball” about issues that might well come before the Court like abortion, gay marriage, or affirmative action or their personal approaches to interpreting the Constitution. Justice
Thomas has made many extra-judicial statements expressing quite clearly his disdain for affirmative action. Federal judges are supposed to be politically independent. They are also not supposed to talk about pending cases or how they might come out on issues that are likely to come before them.
But Supreme Court Justices are free as free can be because they are exempt from the Code of Conduct for United States Judges. Do Supreme Court Justices need a Code of Conduct? The answer is yes. The republication of the tell-all 1991 warts and all book, The Triumph & Tragedy of Lyndon Johnson by top Johnson domestic adviser, Joseph A. Califano, Jr. reveals that Johnson and Supreme Court Justice Abe Fortas were guilty of unethical behavior in connection with a major litigation pending in the Supreme Court of the United States. The only problem is there was no binding Code of Conduct to nail them.
So the Justices are above the law. Chief Justice Roberts said in his 2011 report on the judiciary that the Justices will “consider” the Code of Conduct even though not strictly bound by its terms.
As is self-evident, you can’t have a fair and impartial justice system if one side can talk to the judge about the merits of the controversy without the other side being present. It is an article of faith among lawyers and judges in this country that such contacts, known as ex parte communications, are impermissible on the part of the lawyer, and also impermissible on the part of the judge.
This important principle is enshrined in Disciplinary Rule 7-110(B) of the Model Code of Professional Responsibility of the American Bar Association binding on all lawyers. DR 7-110(B) provides that: “In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge...before whom the proceeding is pending [in the absence of the lawyer on the other side of the controversy].” There are exceptions, but they are not relevant to the present discussion.
Similarly, Canon 3(A)(4) of the Code of Conduct for United States Judges provides that, “a judge should not initiate, permit, or consider ex parte communications or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers.”
Califano makes the shocking revelation that Johnson and Supreme Court Justice Abe Fortas not only had ex parte conversations about a case pending before the Supreme Court, but that Fortas suggested language to the White House that he wanted to see in the government’s brief, and then quoted that language in his opinion. Here’s the story as Califano relates it.
In April, 1966, the Interstate Commerce Commission approved the proposed merger of the Pennsylvania and New York Central Railroads over the objections of the Justice Department, which had big antitrust concerns about the combination. Stuart Saunders, chairman of the Pennsylvania Railroad, was a seasoned businessman who had supported Johnson politically, and was a big Democratic contributor, which in those days meant cash. Saunders had a track record in big railroad mergers. He was eager to consummate this one as it would be a mega-merger, the largest in history, the resulting entity to be the Penn-Central Railroad.
Competing railroads opposed the merger, and sought to overturn the determination of the ICC. They took their case to the federal courts where a three-judge court heard the matter and refused to block the merger. The aggrieved railroads went to the Supreme Court. Johnson’s Justice Department under Bobby Kennedy, and later Nicholas Katzenbach had decided not to oppose the merger. Katzenbach’s successor as Attorney General, Ramsay Clark, took a different view of the matter, and determined that Justice would join the other railroads in opposing the merger. Solicitor General Thurgood Marshall was poised to file a brief in the Supreme Court advocating Justice’s position. After all, the Solicitor General is under the Attorney General and is supposed to do his master’s bidding.
This angered Saunders who thought he had a commitment from Kennedy and LBJ that if the ICC approved the merger, the Justice Department would not oppose. So Saunders began to pressure the White House to make Clark’s Justice Department reverse its position.
Meanwhile, Johnson ordered an emergency cabinet meeting for Thanksgiving morning at the White House of relevant department heads to consider the matter. Transportation Secretary Alan Boyd, sharply differing with Clark, favored the merger. Johnson wanted either no brief or one favoring the merger. When there was an impasse at the cabinet level, Johnson phoned Fortas, a close confidant who was angling to become Chief Justice of the United States. The tape recording of the conversation was destroyed at Johnson’s direction. Johnson, however, told Califano that Fortas had said there was no need for the Supreme Court to send the case back to the ICC, and the government’s brief should indicate that all the agencies responsible for transportation policy, notably Boyd’s Transportation Department, believed the merger should go forward. From his conversation with Fortas, Johnson concluded that the government should file no brief at all. Fortas later called Califano at home and repeated the advice Johnson said he had given. Califano, a Harvard trained lawyer, remembered being astounded that he was talking to a Supreme Court Justice ex parte about what should go into a government brief before the Court.
Johnson directed Califano to call Marshall about the brief, and also to have Gardner Ackley, Chairman of the Council of Economic Advisers, visit with Marshall, and present him with a memorandum on the point. Ackley reported back to the White House that “Marshall is obviously unhappy with the situation...and would like to find a way out.”
Marshall agreed to file a new brief. Califano advised Saunders, who had camped out at the Hay-Adams Hotel across the street from the White House, that the new brief was one he would be happy with.
In a five to four decision the Court sent the case back to the ICC for further proceedings. Fortas was one of the dissenting Justices who wanted the merger to go forward. In his dissenting opinion, he quoted from the portion of Marshall’s brief that made the very point he had suggested to Johnson. “The United States does...not challenge the merger itself. Indeed, the Solicitor General has represented to the Court that ‘the agencies of the Executive Branch that have substantive responsibilities for the formulation of economic and transportation policy believe that the merger is in the public interest and that its consummation should be promptly effected.’” On January 15, 1968, the Supreme Court finally approved the merger with Fortas writing the majority opinion. Fortas resigned from the Court in 1969 amid serious charges of unrelated ethical impropriety.
The entire episode, ignored by the media in 1991 when Califano first published his book, is shocking. The conduct of Johnson and Fortas in discussing a case before the Court offends the Code of Conduct of United States Judges. Even if the Code is not binding on Supreme Court Justices, what happened seriously undermined the independence of the judiciary. Surely, there are those who might maintain that this could not happen today. But until the Supreme Court buys into the Code of Conduct, it could occur again.
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James D. Zirin, a lawyer, is the author of The Mother Court, published last year.
