NPR ran a story this morning on judicial ethics, focusing on the Supreme Court. The story noted Justice Thomas's failure to report his wife's income on his federal disclosure form for a number of years,as well as her highly visible involvement with ultra-conservative groups. It also recalled Justice Scalia's famous duck hunting trip with Dick Cheney at a time when the Bush administration's counter-terrorism policies were coming before the Court. The piece didn't mention, but might have, the 2000 decision that gave the presidency to Bush by halting the recount of ballots in Florida.
Here's another ethical issue that I wrote about several years ago in my weekly newspaper column:
Newly released FBI records reveal that a physician prescribed a powerful sleeping pill for the late William Rehnquist when he was an associate justice of the U.S. Supreme Court. According to these records, the doctor prescribed 500 milligrams of Placidyl every evening. Instead, the justice popped 1500 milligrams every night before beddy-bye.
The problem apparently came to a head in 1981 when, according to a shrink interviewed by the FBI, the family admitted awareness of “long-standing slurred speech which seems to coincide with the administration of Placidyl.” A month-long detox program weaned His Honor off the addiction in 1982, we are told.
It’s instructive to ask what sorts of decisions the good justice was rendering at the peak of his drug addiction in 1981. While hardly an exhaustive review of the cases in which Rehnquist weighed in, here are a couple of quick examples:
In Robbins v. California (453 U.S. 950, decided July 1, 1981), the defendant had been convicted of possession of and dealing in marijuana. During a motor vehicle stop, the cop opened a suitcase containing Robbins’s grass. The Supreme Court majority held that, absent a warrant or permission from Robbins, this search was unconstitutional and could not support his conviction.
Justice Rehnquist --- himself a drug addict at the time --- dissented, saying, “I have previously stated why I believe the so-called ‘exclusionary rule’ created by this Court imposes a burden out of all proportion to the Fourth Amendment values which it seeks to advance by seriously impeding the efforts of the national, state, and local governments to apprehend and convict those who have violated their laws. I have in no way abandoned those views, but believe that the plurality opinion of JUSTICE STEWART announcing the judgment of the Court in the present case compounds the evils of the ‘exclusionary rule’ by engrafting subtleties into the jurisprudence of the Fourth Amendment itself that are neither required nor desirable under our previous decisions.”
A judge’s own human frailty ought to compel him to show some mercy to the rest of us sinners. Apparently not so with Barbiturate Billy. Au contraire… he couldn’t hang his fellow sinners fast enough. In Coleman v. Balkcom (452 U.S. 955, rehearing denied June 15, 1981), Rehnquist’s colleague, Justice Stevens, complained, “Today Justice REHNQUIST advances the proposition, as I understand his dissenting opinion, that we should promptly grant certiorari and decide the merits of every capital case coming from the state courts in order to expedite the administration of the death penalty.”
Justice Stevens sure got that right. Wrote Rehnquist, “If petitioner follows the path of many of his predecessors, he will now turn to a single-judge federal habeas court, alleging anew some or all of the reasons which he urges here for granting the petition for certiorari. If he fails to impress the particular United States District Court in which his habeas petition is filed, he may upon the issuance of a certificate of probable cause appeal to a United States Court of Appeals. And throughout this exhaustive appeal process, any single judge having jurisdiction over the case may of course stay the execution of the penalty pending further review. Given so many bites at the apple, the odds favor petitioner finding some court willing to vacate his death sentence because in its view his trial or sentence was not free from constitutional error.”
One wonders where Justice Rehnquist’s hard words originated. Did they derive from his own mind? Were they written by a non-addicted law clerk? Or were they dictated to His Honor by one of the voices he heard talking outside his room? Well, all right… to be fair, the voices and other hallucinations are said to have been limited to his 30-day withdrawal trauma, when he also allegedly tried to escape from the hospital in his pajamas. The escape, it’s said, related to a paranoid delusion that the CIA was after him.
This last juicy detail conjures up an image of the Justice being detained by a police officer, who decides to conduct a warrant-less search of the crazed Bill Rehnquist. Perchance even a body-cavity search for hidden drugs? A close encounter with a D.C. patrolman might have had a softening effect on the hanging judge. But perhaps not…
Somehow, white-collar criminals seldom see themselves as deserving the same punishments as the ‘garden variety’ criminals on America’s mean streets. Is it criminal to take a triple dose of a drug, known on those same mean streets as “jelly bellies?” Is it criminal to rule on the criminal convictions of other druggies when addicted oneself?
Many might fairly think so. Apparently, Justice William Rehnquist did not. To my mind that’s pure hypocrisy.
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The decision of the US Court of Appeals for the 11th Circuit last week, holding that the mandate provision in Obamacare is unconstitutional created a split in the circuits, since the 6th circuit earlier held the opposite view. Without a doubt the PPACA is now headed for the Supremes. Their dispassionate, unbiased, ethical consideration of the law is crucial. Millions of us will be affected by that decision. Unfortunately, the record in recent years, as suggested above, is not great. And already the drumbeat of accusations along ideological lines is audible, with Justice Kagan being told by conservatives she must recuse herself from the case, because she was legal counsel in the Obama Administration when the law was enacted.
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