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More Tricks Than Treats From the Judiciary This Halloween

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The Justices’ Ethics Tricks In Full View

Even amid a government shutdown, the justices are maintaining their brisk travel schedules. What a treat it is to be a justice. And if you listen closely to what they’re saying in interviews and lectures, you can learn about some of the less-than-ethical tricks they’ve pulled over the years.

For example, when Justice Barrett was speaking with the National Review this month, she mentioned and seemed to absolve Justice Scalia’s famous “personal hospitality” trick, where he’d be flown out to a university to give a talk (fine) but afterwards would go on a free hunting trip nearby that he wouldn’t report as a gift on his financial disclosure, even though the hunting lodge was often a corporation and not a person who can bestow personal hospitality exempt from disclosure.

Then Justice Sotomayor offered this nugget last week in Boston: “I tell law students, even the ones who have worked for me as interns, when they did — now they don’t let me hire them; it’s a long story. But for many, many years, I would hire interns…” Wait, what?

You heard that right. Sotomayor from 2009 to 2014 hired unpaid interns, though the program was shut down by an unnamed person or persons after word got out that the 20-somethings were bringing her snacks and driving her around without compensation.

Soon after, she helped set up a different paid-slash-for-credit internship program that places students in courthouses nationwide. Fine. But several of the sponsors of its annual gala, held on Oct. 15, are law firms with cases currently at SCOTUS. Not fine!

It’s also worth mentioning that in a different interview, Justice Barrett threw cold water on Fix the Court’s idea to create a Supreme Court Records Act, where the justices’ papers would become property of the U.S. after they retired, like a president’s upon leaving office, and then would then become public 12 years post-retirement.

Some justices have demanded their papers remain private for 50 years after they become ghosts (i.e., die; just going with the theme here). Opacity at its finest!

Who’s Funding the Judiciary Right Now? And Why Is It China?

The Constitution says that federal judges and justices shall “receive for their services a compensation [that] shall not be diminished during their continuance in office.” That means they get paid even during a shutdown.

But where’s the money coming from exactly?

Luckily, I have some good sources, and here’s what I’ve learned:
1. The money is not coming from PACER fees (whew).
2. The money is coming from the general fund of the Treasury, meaning that whatever fee-taking and borrowing our government is doing to pay out its other obligations, like social security, that’s happening here, too.

Does that mean we’re borrowing money from the Fed, bondholders and even Japan, China, the U.K. and other foreign countries to pay our judges? In part, yes.

So we’re also rooting for the shutdown to end as soon as possible.

Not a Trick: Judges Acting Ethically

This week, the U.S. Court of Appeals for the Ninth Circuit agreed to reconsider the legality of the Trump administration’s deployment of the National Guard in Portland.A panel of the court had ruled 2-1 to permit the deployment, but the court said on Tuesday it would rehear the case en banc, in which 11 of the circuit’s active judges would participate.

You may recall that at the trial court level, a Trump appointee, Judge Karin Immergut, ruled that the deployment was unlawful — and that she was only hearing the case because her colleague, Judge Michael Simon, had recused, since he’s married to a member of Congress who spoke out against that action.

Whether or not Simon should’ve recused — it’s probably for the best, given the distraction it would’ve been — I’m reminded of all the times I was told that a judicial spouse is their own person with their own opinions, and surely those things must not implicate a justice and whether he should participate in a certain case.

In the vein, I’ve compiled a list of cases Justice Thomas would have recused from had he followed the Judge Simon Standard. (It’s not a short list.)

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