While I’ve never demonstrated a deep concern for the personal wealth of members of the federal judiciary, saving it all for the personal wealth of the private criminal defense bar, the harsh reality is that becoming a justice of the Supreme Court of the United States should not require an oath of poverty. Picture Nino and Thomas singing “I believe I can fly” in two-part harmony on the courthouse steps for tips during the lunch break. It’s not a pretty picture.
In this New York Times editorial, the Justices are taken to task for having stock portfolios that preclude them from sitting on cases involving corporations in which they have a putative interest.
So it is dismaying to find that some sitting justices continue to own stocks. Financial disclosure forms released this month show that the worst offender is Justice Stephen Breyer, who retains shares in more than three dozen companies. Chief Justice John Roberts holds stocks in 16, and Justice Samuel Alito owns stocks in 5.
While the problem exists for all federal judges, it’s more problematic for Supreme Court justices.
It would be best if all judges ordered their investments to avoid conflicts. But the issue is most acute for Supreme Court justices, who cannot be replaced by another jurist. When Supreme Court justices recuse themselves, they risk altering important decisions and blocking the court from doing its job.
The editorial goes on to provide a number of recent examples where stock ownership by justices has impacted the court’s ability to reach a majority, and even to hear a case. This is a problem. When the highest court in the nation, consisting of 9 justices, can’t consider a case or reach a decision, the system fails. This shouldn’t happen.
But what’s the solution? This is what the Times has to offer:
Two years ago, Congress changed financial rules to allow federal judges to defer paying capital gains taxes on securities they sell to avoid conflicts of interest. That should make it easier for them to do the right thing: sell off their individual stocks in favor of mutual funds, government securities or certificates of deposit. To do the nation’s business, the Supreme Court needs a full complement of justices, fully focused on the law, and not their own bottom lines.
That’s unfair. Like everyone else, they have mouths to feed and bills to pay. Climbing the ladder of accomplishment in the law is an act of fiscal suicide. Considering the level of achievement required to sit on that bench, the pay is paltry. With your run of the mill hedge-fund manager making in the mid 7 figures, and non-rainmaking partners at Biglaw doing almost as well, our Supreme Court Justices can barely afford a new bowtie, a lacy collar or stripes on their robes. Seriously, they have earned the right to have a fair degree of financial comfort.
Assuming that our justices have saved a few dollars over the years, it has to be placed somewhere. Does the Times suggest that they keep it under the mattress, or perhaps a nice 6 month CD (oops, that would leave them conflicted when a bank case came before them, so that won’t work). There aren’t many places to turn. A blind trust might work, but considering that it isn’t for 4 or 8 years, but perhaps 30 or more, it’s not entirely reasonable to expect them to have no clue about their personal financial situation. How does one decide whether to redo the downstairs bathroom when you have no idea whether you can afford it?
Yes, they are Supreme Court Justices. But yes, they are still people. I enjoy the fruits of my labors, and I know what those fruits can buy me. They are entitled to enjoy and know as well. So if society demands that they shed all earthly investments and thus free themselves of all inchoate conflicts, then society owes them a darn better living then they now receive.
I suggest that we index the wage for a Supreme Court Justice at 50% of the median income of an equity partner at law firms with 1000 or more lawyers. That will account for the public service aspect of the job, not to mention the intangible benefit of being one of nine who gets to decide big issues, while providing for a pretty comfortable lifestyle at a multiple of 10 times their current salary. Then, let them shed their investments, whether to a blind trust or altogether. Pay them well, and they can afford it.