2 January 2012

The Chief Justice of the United States Supreme Court prepares an end of year report. In several recent reports the focus has been on the need to increase the pay for the judges!  Because of the tight relativities in salaries of US officials, and the fact that the President has not had a pay rise since 2001, federal judges have had their pay frozen.

In the end of year report published yesterday, remuneration does not feature. The Chief Justice has focused his report on the integrity standards of his justices and how conflicts of interest should be determined.

Roberts CJ asks “Where do federal judges look for guidance in resolving ethics issues?”  His answer is that Supreme Court judges are different from other judicial officers.  As the Supreme Court is a creature of the US Constitution, rules for other judges should not apply to Supreme Court judges. Although the chief justice chairs the Judicial Conference which manages the code of conduct for federal judges, he rejects a growing body of opinion that the code should apply equally to the Supreme Court.

Yet there are widely known differences in the willingness of justices like Ginzburg and Stevens to declare ethical matters and the close handedness of justices like Alito and Stevens.  Interestingly the chief justice acknowledges that the Supreme Court conforms to rules directed by Congress for judges to declare gifts and outside-earned income,   although as a separation of powers issue, he queries the appropriateness of complying with that Congressional direction.

The chief justice presents the perspective that Supreme Court justices cannot recuse in the same way as other judges. His concern is that any recusal affects the composition of the Court. Yet with unconscious irony he emphasises the non partisan character of Supreme Court justices – disregarding the major forensic excitement if ever justices give an opinion which does not reflect the politics of the party of the president who appointed them.

The chief justice comments that “…a Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each Justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.”

And yet a simple test of whether a reasonable person would see a conflicting interest would seem much more pertinent.  An interesting truism is the observation that “….at the end of the day, no compilation of ethical rules can guarantee integrity. Judges must exercise both constant vigilance and good judgment to fulfill the obligations they have all taken since the beginning of the Republic.”

What is also interesting is that the disclosure that Supreme Court justices make, in the same way as other federal judges, includes non-governmental income, investments, liabilities, gifts, and reimbursements from third parties. Supreme Court justices declare surprisingly small personal wealth, with most disclosing assets valued at less than $2 million.

The current salary of the US chief justice is US$223,500, (NZ$287,277). Other US Supreme Court justices earn US$213,900 (NZ$274,938).

Salaries for the New Zealand Supreme Court are $460,000 for the chief justice, and $431,000 for the other judges.