When President Obama forcefully lectured the Supreme Court last week on the constitutionality of his health care law, he may have done more than simply attack an independent branch of government — he seems to have violated the code of legal ethics.
Every lawyer in America is bound by a code of ethics that governs membership in the profession. Ethical rules are not law per se, but ethics committees have the power to bar lawyers from practicing law.
President Obama received his license to practice law in Illinois in 1991, and presumably he knows the code of ethics. Illinois requires applicants to pass an ethics examination, known as the Multistate Professional Responsibility Examination, in order to be admitted to the bar. This test is taken in addition to the bar examination.
The relevant Illinois ethics rule is Rule 3.5 of the Illinois Rules of Professional Responsibility: “A lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law …”
In his April 2nd Rose Garden speech, President Obama said:
I think the justices should understand that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with pre-existing conditions can actually get health care.
Ultimately, I’m confident that the Supreme Court will not take what would be an extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.
Obama used his presidential office to influence the high court.
To be sure, Teddy Roosevelt, Franklin Roosevelt and Richard Nixon also famously attacked the Supreme Court. In fact, President Obama attacked the Supreme Court’s Citizens United decision in his 2010 State of the Union address. That, too, was an unprecedented attack on the court — no president had ever criticized the justices from the floor of the House of Representatives on live television before — but it was not an ethical violation.
Here’s the difference between President Obama’s April 2nd attack on the court and previous ones: In each of those previous instances, a president was faulting the high court for a decision it had already handed down. In his Rose Garden speech, President Obama instructed the Supreme Court before it had ruled on a pending case.
Lawyers are simply not permitted, as a matter of their governing written ethical code, to push judges around in a case that remains undecided.
The Illinois code of ethics is very clear on this point. Lawyers have “a special responsibility” to safeguard the independence of the courts and keep its reputation free from perceptions of bias, even false ones. Lawyers have a responsibility to the integrity of the system as a whole, to the rule of law.
Obama knows that lawyers are barred from using elective office to bully judges. After all, he was admitted to the Illinois bar, which means he passed the ethics test.