It’s no secret Chief Justice John Roberts, along with Associate Justices Stephen Breyer and Samuel Alito, have rarely met a Corporate Person they didn’t want to protect. After all, they have rich buddies who, one way another, helped them to get where they are today. However, when they start ruling in cases involving corporations of which they are part owners, it’s taking corruption to a whole new, appalling level.

That is exactly what has been happening. In nearly twenty instances, these three justices have failed to recuse themselves from cases in which they had vested, personal, financial interest. They were stockholders in companies involved in those cases. Despite the fact that Supreme Court judges aren’t obligated to make their financial disclosures public (unlike those in the Executive and Legislative branches), sordid details have been published online. Those details include names of companies, types of cases, and which judges own what and how many shares.

Can you say “conflict of interest”? Because that is exactly what it is. Had your local county or municipal judge been caught ruling on a case involving his or her relative’s “Mom and Pop” hardware store or an old school chum’s used car dealership, you can bet there would be an investigation. Such a judge would most likely get booted off the bench, and even face ethics violation charges by the State Bar Association.

Yes, there is a code of ethics addressing this sort of thing. Specifically, Canon 2, Paragraph B of the Code of Conduct for United States Judges states:

A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge.

Apparently, the three justices on the SCOTUS didn’t read that part. Or perhaps they did. It doesn’t matter, because there is a loophole that has enabled this misconduct. It’s known as the amicus curiae, or “friend of the court” brief. This is a document filed by an individual or entity, such as a civil rights organization, state government, or even a private company that is not a party to the case in question. Information pertinent to the facts of the case is offered voluntarily. There is no legal obligation to furnish such testimony or expert opinion, nor is the court required to consider such information. Generally, amicus briefs are filed in cases that may have broad implications; it’s a way to ensure that any decision will be based on as much information as possible, not just that provided by parties to the case. According to Supreme Court Rule 37, “an amicus brief may be of considerable help” in complex cases when the stakes are high.

In recent years, corporate lawyers have realized that being a “friend of the court” means power and influence. In the 1950s and 1960s, amicus briefs were filed in fewer than 40% of Supreme Court cases. By the early 21st Century, however, that figure has doubled. According to a 2013 article in The National Law Journal, the SCOTUS session of 2012-2013 saw over 1,000 amicus brief filings – a historic record.

Not surprisingly, Roberts, Alito and Breyer have ruled consistently with companies in which they own stock – and research at FixTheCourt has revealed that 70% of those companies had filed amicus briefs.

It seems that the USA does have kings – nine of them, to be exact – and like kings of old, they are above the law. It’s even worse than that: at least kings were answerable to God, and that fear tended to keep them in line (somewhat). Our SCOTUS judges, appointed for life, are answerable to no-one.

Thankfully, we have watchdog organizations and Progressive media. Sunshine is indeed the first-line treatment for corruption.

 

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K.J. McElrath is a former history and social studies teacher who has long maintained a keen interest in legal and social issues.