Reasonable people may not agree with this. The most important and uncontroversial point is that if there are to be no formal ethics restrictions on our Supreme Court, or even if there are, its justices must have working noses. They should stay away from any conduct that smells dubious, even if it doesn’t break a formal rule.
The fact is, when you become a judge, things happen. Many years ago, as a relatively new federal judge, he was discussing our children with a local attorney he knew very little about. As our conversation progressed, he mentioned that he had planned to take his 10-year-old son to a Red Sox game that weekend, but his plan had backfired. Would I like to use his tickets?
I was tempted. The tickets were beyond my usual price range, and the game would be a fun outing with my 7-year-old. It didn’t seem to me that the lawyer was trying to do anything improper. It seemed to be, and almost certainly was, just a spontaneous impulse that came out of a friendly conversation. Furthermore, the seats at Fenway Park, like the far more expensive seat on the private jet Judge Samuel Alito used for free on his Alaskan vacation, would likely go empty if he didn’t take them. Who would be harmed?
Much to my chagrin, while pondering the situation, I caught the scent of something strange. Not a real smell, of course, but something like that: something like a whiff of milk about to turn sour, or a pan that’s been left on the stove too long. It wasn’t that the lawyer had bad intentions; it was that I was approaching a limit. Grinding my teeth silently, I declined the tickets.
A few years later, after I received my appointment as a US District Judge for Life, I issued a decision reversing the Social Security Administration’s denial of disability benefits to an older claimant. I was in our secretary’s office one day when his man and his wife approached me with a package. He had a hobby of woodworking, and inside the package was an exquisitely crafted oak case with brass hinges. My ruling had made a world of difference to them and they wanted to extend this modest personal gesture of gratitude. Again, they obviously weren’t being manipulated. Their lawsuit was over, and this would probably be the last time they would see me. However, as my cop friends tell me, the road to downfall begins with a free cup of coffee. As politely as I could, I put the pencil box down. It still hurts me to remember his embarrassed and downcast faces.