SCOTUS JUSTICES THOMAS AND ALITO FLUNKING SMELL TEST

By Michael Ponsor

(Judge Ponsor is a senior judge on the U.S. District Court for the District of Massachusetts.)

What has gone wrong with the Supreme Court’s sense of smell?
I joined the federal bench in 1984, some years before any of the justices currently on the Supreme Court. Throughout my career, I have been bound and guided by a written code of conduct, backed by a committee of colleagues I can call on for advice. In fact, I checked with a member of that committee before writing this essay.

A few times in my nearly 40 years on the bench, complaints have been filed against me. This is not uncommon for a federal judge. So far, none have been found to have merit, but all of these complaints have been processed with respect, and I have paid close attention to them.

The Supreme Court has avoided imposing a formal ethical apparatus on itself like the one that applies to all other federal judges. I understand the general concern, in part. A complaint mechanism could become a political tool to paralyze the court or a playground for gadflies. However, a skillfully drafted code could overcome this problem. Even a nonenforceable code that the justices formally pledged to respect would be an improvement on the current void.

Reasonable people may disagree on this. The more important, uncontroversial point is that if there will not be formal ethical constraints on our Supreme Court – or even if there will be – its justices must have functioning noses. They must keep themselves far from any conduct with a dubious aroma, even if it may not breach a formal rule.

The fact is, when you become a judge, stuff happens. Many years ago, as a fairly new federal magistrate judge, I was chatting about our kids with a local attorney I knew only slightly. As our conversation unfolded, he mentioned that he’d been planning to take his 10-year-old to a Red Sox game that weekend but their plan had fallen through. Would I like to use his tickets?

I was tempted. The tickets were beyond my usual price range, and the game would be a fun outing with my 7-year-old. It didn’t seem to me that the lawyer was trying to do anything improper. It seemed to be – and almost certainly was – just a spur-of-the-moment impulse arising out of a friendly conversation. Moreover, the seats at Fenway Park, like the much more expensive seat on the private jet used free by Justice Samuel Alito on his Alaska vacation, would probably go empty if I didn’t take them. Who would be harmed?

To my chagrin, as I pondered the situation, I became aware of an aroma of something off. Not an actual smell, of course, but something like that – something like a whiff of milk on the verge of going sour or a pan left on the stove too long. It wasn’t that the lawyer had evil intent; it was that I was approaching a boundary. Silently gnashing my teeth, I turned the tickets down.

A few years later, after I’d received my appointment as a life-tenured U.S. district judge, I issued a decision reversing the Social Security Administration’s denial of disability benefits to an older plaintiff. I was in our clerk’s office one day when the man and his wife approached me with a package. He had a woodworking hobby, and inside the package was an exquisitely crafted oak pencil case with bronze hinges. 

My ruling had made a big difference for them, and they wanted to extend this modest, personal gesture of gratitude. Again, they were obviously not being underhanded. Their lawsuit was over, and this was probably the last they would ever see of me. Nevertheless, as my police officer friends tell me, the road to perdition starts with a free cup of coffee. As politely as I could, I turned the pencil case down. It still pains me to remember their embarrassed, crestfallen faces.

All my judicial colleagues, whoever has appointed them, run into situations like these regularly, and I expect they have responded in just the same way. You don’t just stay inside the lines; you stay well inside the lines. This is not a matter of politics or judicial philosophy. It is ethics in the trenches.

The recent descriptions of the behavior of some of our justices and particularly their attempts to defend

their conduct have not just raised my eyebrows; they’ve raised the whole top of my head. 

*Lavish, no-cost vacations? 

*Hypertechnical arguments about how a free private airplane flight is a kind of facility? 

*A justice’s spouse prominently involved in advocating on issues before the court without the justice’s recusal? 

*Repeated omissions in mandatory financial disclosure statements brushed under the rug as inadvertent? 

*A justice’s taxpayer-financed staff reportedly helping to promote her books? 

*Private school tuition for a justice’s family member covered by a wealthy benefactor? Wow.

Although the exact numbers fluctuate because of vacancies, the core of our federal judiciary comprises roughly 540 magistrate judges, 670 district judges, 180 appeals court judges and nine Supreme Court justices — fewer than 1,500 men and women in a country of more than 330 million people and 3.8 million square miles. Much depends on this small cohort’s acute sense of smell, its instinctive, uncompromising integrity and its appearance of integrity. If reports are true, some of our justices are, sadly, letting us down.

To me, this feels personal. For the country, it feels ominous. What in the world has happened to the Supreme Court’s nose?