Herb Strentz was dean of the Drake School of Journalism from 1975 to 1988 and professor there until retirement in 2004. He was executive secretary of the Iowa Freedom of Information Council from its founding in 1976 to 2000.

A timely editorial on the U.S. Supreme Court and judicial ethics—“Injudicious investments”—began as follows: “The U.S. Supreme Court sits on a ticking time bomb. The high court’s integrity and prestige will be damaged severely when the bomb goes off.”

The Supreme Court is the nation’s only judicial body without a code of ethics or standards to guide the justices on when, among other things, a justice should not take part in deciding a case. Randy Evans covered such issues well in a recent column. His points are underscored in an Iowa Supreme Court website devoted to the Iowa Judicial Qualifications Commission. The commission deals with allegations of misconduct by Iowa judges, magistrates and court employees.

So the editorial quoted above is timely and provocative.

That’s because the Des Moines Register published the “ticking time bomb” editorial, written by Gil Cranberg, more than 43 years ago — on June 11, 1980. It focused on how to avoid having a justice’s stock portfolio influence court decisions.

A LONG HISTORY OF QUESTIONING THE SUPREME COURT

Another Des Moines Register editorial by Cranberg, published on December 15, 1981, questioned why the Supreme Court kept secret which justices supported hearing one case or another from among the several thousand litigants. Cranberg also argued the public should know the specific reason a judge might recuse (or disqualify) himself or herself from participating in consideration of an appeal.

Transparency surrounding such information is not at the forefront of today’s controversies involving Supreme Court justices, especially Clarence Thomas and Samuel Alito, who have faced criticism for accepting lavish gifts, travel, and other support that might influence their views on a case. Justice Alito and Justice Elena Kagan have recently disagreed in public over whether Congress has the constitutional authority to regulate the Supreme Court.

To Cranberg, however, critical issues of secrecy on recusal and deciding which cases to accept were compounded by the lack of uniform standards and practices among the Supreme Court justices.

Lauren Camera reported for U.S. News in June, “Pressure is mounting on Chief Justice John Roberts to adopt a code of ethics for the Supreme Court in the wake of yet another revelation of a justice not disclosing a luxury trip paid for by a billionaire GOP donor with business before the court.” Democrats on the Senate Judiciary Committee have approved a proposal to impose a code upon the court, but strong Republican opposition makes that unlikely.

Who was this Iowa guy?

Cranberg (1925-2018) worked at the Register and Tribune from 1949 until retiring in 1982. He spent 26 years on the R&T editorial page staff and seven years as the R&T’s opinion page editor.

But well beyond his work at the newspapers, he was concerned about the judicial system for more than half of his 93 years and often corresponded with Supreme Court justices.

Cranberg’s daughter, Marcia Wolff, is a graduate of the University of Iowa Law School and worked and lives in D.C. She recalled,

He once asked me to look up the personal papers of a few then-deceased Justices at the Library of Congress. There were many memos and a fair amount of worried conversation among the Justices about this Iowa journalist who kept pestering them, including strategies for how to deal with his questions and fend him off. Dad was right, and he was brave.

Cranberg’s concerns ranged from how poorer people suffered under county bail systems to why the U.S. Supreme Court essentially keeps secret why a justice might recuse (disqualify) herself or himself from hearing a case and also which judges supported hearing an appeal (granting a writ of certiorari). Again, the absence of a code of ethics regarding conflicts of interest invites such concerns.

Even at age 90—35 years after writing that 1980 editorial—Cranberg was questioning Supreme Court justices about these concerns in op-ed pieces and his correspondence with them.

Accepting a case for review requires a recommendation from at least one justice. Then at least four justices need to agree in order to put the case on the docket for an upcoming term. But which justices deem a case worthy of review is not made public. What’s on the docket is crucial given that, with up to 10,000 cases to consider, the court may opt to review only about 80.

HOW IT WORKS IN IOWA

Steve Davis, communications director for the Iowa judicial branch, explained via email the Iowa process works in setting the court docket.

Approximately 2,000 appeals are filed with the Iowa Supreme Court every year. All appeals of trial court actions go directly to the supreme court which, after review, determines whether it will retain the appeal or transfer it to the court of appeals. Under court rules, cases that the supreme court retains typically involve substantial constitutional questions, potential conflicts in law, substantial issues about which there is not well-settled law, and cases involving fundamental or urgent issues of broad public importance.

During the supreme court’s 2022-2023 term (September 1, 2022 to June 30, 2023), the court decided 96 cases by opinion, a number that is about 10 percent lower than the recent historical average. It is usually around 107 -110 cases.

At age 89, Cranberg wrote about the national process on his blog, “The Truth Is!”:

The secrecy that surrounds Supreme Court justice votes on whether to accept cases for review has never been a cause of concern by the press as a whole even though the decisions on the composition of the high court’s docket are of the utmost importance. The press ought to wake up and quit passively tolerating this unnecessary government secrecy.

Cranberg expressed similar concerns about information on why a justice may opt out of being involved in a case, as well as why a justice does not opt out.

Cranberg’s daughter notes, “One reason it was important is that he discovered from their responses to his letters that in the absence of a uniform code of ethics, they utilized very different standards from each other in determining when recusal was ethically required, often just relying on tradition or instinct…”

In Iowa, Davis said, “A justice may recuse him or herself without stating a reason why. According to Iowa Court Rules, there are many possible reasons.” Iowa’s Code of Judicial Conduct, like rules governing other state courts, address such issues, following the American Bar Association Model Code of Judicial Conduct, which applies to all U.S. courts except the Supreme Court.

A FOCUS ON MR. AND MRS. THOMAS

Among current members of the U.S. Supreme Court, Justice Thomas has received the most scrutiny in recent months, because of his long history of receiving undisclosed gifts from wealthy benefactors, and because his wife Virginia (Ginni) Thomas assisted efforts to overturn the 2020 presidential election. (Thomas’ confirmation was controversial from the beginning, due to sexual harassment allegations; the Senate confirmed him in 1991 in an unusually close 52-48 vote.)

Cranberg raised concerns in 2010 about whether Justice Thomas would be influenced by his wife’s role in the founding and leadership of Liberty Central, a non-profit conservative political advocacy group created in 2009 and disbanded in 2012. Its interests included overturning the Affordable Care Act, so called Obamacare — a centerpiece of the administration of President Barack Obama.

When a case involving the health care reform law came before the Supreme Court in 2012, Thomas did not recuse, and he dissented from a 5-4 decision that upheld most of the law. Thomas later voted with the 7-2 majority in a 2021 case that upheld the Affordable Care Act on different grounds. He argued that the court had erred in the previous decision.

Critics have suggested that Ginni Thomas may influence her husband in any court proceeding involving Donald Trump.

When Cranberg flagged potential problems related to the Thomases, he cited Rule 2.9 of the ABA Model Code, which reads in part: “A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter…”

The model code also warns that a judge must not become involved in, or publicly associated with, “a family member’s political activity or campaign for public office. To avoid public misunderstanding, judges and judicial candidates should take, and should urge members of their families to take, reasonable steps to avoid any implication that they endorse any family member’s candidacy or other political activity.”

How the Thomases comply with that provision is conjecture, given that the Supreme Court has no such guidelines.

Likewise, it is unclear whether having a code or uniformity on recusal or other matters would quell the current controversies.

In 1981, long before Thomas and Alito served on the court, Cranberg pressed justices for answers to questions about ethics and guidelines. The theme of most of the responses then and in subsequent years was that the justices were following court custom and tradition.

But since when did our custom and tradition include having a former and wannabe president facing 91 criminal charges in four federal or state indictments, a divisive dysfunctional Congress, divisive state legislatures, and a Supreme Court under such scrutiny?

Can we ignore such concerns as we did when Cranberg raised them more than 40 years ago?

Tick, tick, tick.

Top photo of the U.S. Supreme Court justices in 2022 comes from the collection of the Supreme Court of the United States.