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.
Obama also knows that by speaking out on a pending case, he puts the justices in tricky ethical positions as well. Judges have their own ethics code. The governing commentary of Rule 4.1 of the Model Code of Judicial Ethics says:
A judge plays a role different from that of a legislator or executive branch official. Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case. Therefore, in furtherance of this interest, judges and judicial candidates must, to the greatest extent possible, be free and appear to be free from political influence and political pressure.
When Obama said: “I think the justices should understand …” he was making it clear that his statements were aimed at the justices — Justice Kennedy in particular. President Obama knows that judges have an ethical obligation to decide every case on the facts and the law, not the law’s popularity. Yet he used his office to lecture the Supreme Court on the law’s popularity, saying that the law was passed by “a strong majority of a democratically elected Congress.”
Against an ethics charge of this type, Obama has two defenses. He could argue that he is not an “active” member of the Illinois bar (he currently has “retired” status). But that defense won’t get Obama very far. Retired lawyers are still members of the bar and must obey its code of ethics.
He could argue that he misspoke and never intended his words to influence the high court. Fair enough. But the damage is done. If the Supreme Court upholds the Affordable Care Act, many Americans will assume that the court bent to the president’s will. If the court denies the constitutionality of the president’s health care law, some will assume that the court bucked the president to assert its independence. Either way, the impartiality of the court will be impugned and the independence of the justices diminished.
Bill Robinson, the president of the American Bar Association, is concerned. “Our civic leaders should refrain from partisan statements aimed at judges fulfilling their constitutional role,” he wrote in a recently published letter to the editor of the Wall Street Journal. The ABA should put its money where its mouth is and investigate the behavior of President Obama, a lawyer who uses public office to bully judges.
Henry Miniter is a lawyer who specializes in civil litigation and is licensed to practice law in New York, Colorado and various federal courts. He is preparing to publish a novel called “Preemptive Justice.”