Do you believe that Justices proposing and pushing for new criminal laws while serving on the bench could be viewed as a conflict of interests?
I believe that the concept of a conflict of interest is often trivialized and treated superficially, that some people are well-meaning when they broadly apply the concept while others are being manipulative and purely playing politics, and that someone who writes a law probably shouldn’t also simultaneously rule on whether that new law passes constitutional or legal muster. There’s a lot to be said about avoiding the appearance of a conflict of interest, but I believe there being an actual conflict is the most important thing, not whether someone believes there is one, or can twist things to seem like there is one.
Is it possible for a justice to fairly adjudicate such a case and separate their role as a legislator and a judge? Of course. And in our system we often have to wear multiple hats. But from a basic separation of powers perspective, the Court is intended to be clearly separate from the legislature and the executive. For similar reasons, appeals involve different people than the ones who made the original decisions. That’s why in that case authorship can be disqualifying. I wrote the Reject Fascism Act which was immediately challenged in the Court. I recused myself from that case.
In the case of simply writing a law, there is ownership as the author of the law and then the Court’s oversight role. If a law is challenged at the outset, it would be bad for the author to be involved in that case. If the law survives for a decade and some other legal question arises from one of its provisions, or some unforeseen situation crops up, I don’t see why the author, if a justice, has a conflict of interest. There’s an immediacy in the first scenario lacking in the second. I think it would be silly if just because a justice wrote a law some time in the past they couldn’t be involved in a case relating to it at any time. We all have opinions, convictions, principles. We don’t shed them just because we enter a particular office. We cannot divorce ourselves entirely from them. That doesn’t mean we can’t do our jobs correctly and fairly. If I feel a certain way about a law, it doesn’t matter if the reality of the constitution doesn’t conform to the belief. If an outcome is the correct outcome it doesn’t matter if I really strongly prefer that outcome. The arguments speak for themselves, and I don’t think criminal laws are any different from generic ones where that is concerned either. If the argument is based on bullshit that will become apparent, and a justice only has words and that argument at the end of the day, because the law is written and made real by the RA.
