This is the story of the judge who enters the hotel…

If Russell Brown had sat on the Supreme Court of the United States rather than that of Canada, no doubt he would still be a judge.

In any case, the Brown “case” contrasts dramatically with that of two current judges of America’s highest court who, apparently, are accountable only to God for their private conduct.

Never before Russell Brown had a Canadian Supreme Court justice been investigated by the Judicial Council. His case is also unique in that he was the subject of a complaint for his behavior in a hotel bar, and not for a fault committed in the exercise of his functions.

If I say that it would not have happened in the United States, it is that first of all, there would have been no investigation for a judge who had questionable behavior in a hotel bar.

For a very simple reason: the judges of the American Supreme Court, whose power and weight in political life are however incomparable, are not subject to the system of discipline and ethics of other federal judges. They are the judges of their own behavior, and barring impeachment proceedings, they are answerable only to God.

Men in a boat proudly display salmon fat enough to make the front page of a fishing magazine. But the photo was instead released by investigative journalism site ProPublica, and the stars are not the fish, but the anglers: billionaire Paul Singer and US Supreme Court Justice Samuel Alito.

ProPublica revealed last week that Singer, a “vulture fund” executive, paid Judge Alito for a luxurious fishing trip to Alaska — including private jet transportation, of course…

Federal employees and US Supreme Court justices are required by law to disclose gifts they receive – more than just hospitality. Judge Alito didn’t, even though this stay is worth tens of thousands of dollars.

Worse: Judge Alito did not recuse himself when the US Supreme Court heard a case against Singer’s fund. In this case, Argentina was ordered to pay 2.4 billion to the company of the judge’s fishing friend.

Singer, in fact, specializes in buying up bad state debt. Alito’s vote was not decisive, since the cause was decided 7 to 2. But the appearance of conflict of interest required that he does not sit, of course.

Spicy detail: the journalists had written to the Supreme Court to obtain the version of the judge, by sending a list of questions. A few hours later, Judge Alito published in the wall street journal his version of events, that he only met Singer a few times, never talked about his business, and didn’t know he was the chairman of the fund that had a lawsuit in the Supreme Court. The rest was just hospitality, nothing more, and he just took a seat on a jet that otherwise would have been empty.

The readers of Wall Street therefore obtained a personal reply from the judge… even before the article was published.

Earlier this year, ProPublica revealed the ties of fellow ultraconservative US Supreme Court Justice Clarence Thomas. This one benefited from much more than a fishing trip. For years, he was paid for luxury vacations and private tuition for his nephew (raised as his son) by Harlan Crow, another billionaire and Republican Party financier. Because Singer is also a big Republican donor.

Thomas never disclosed these gifts, valued at more than $500,000.

A lower federal judge, or a US federal official, would suffer the consequences. But lo and behold, the justices of the Supreme Court of the United States are not subject to the code of conduct of other federal judges. Theoretically, they could be subject to impeachment proceedings before Congress, which happened once in 1805, without success. But no watchdog has the power to investigate them.

In Canada, Supreme Court judges are subject to the same ethical regime as other federally appointed judges. This is why an investigation was opened when an ex-US Marine filed a complaint against Judge Brown for his behavior in a drunken night in a hotel in Arizona.

When he learned that the complaint was going to be examined in public, Judge Brown preferred to resign.

In an interview, former Chief Justice Antonio Lamer questioned himself aloud in front of me: what conduct is unacceptable for a judge in his private life? We expect him to have exemplary behavior, but what does that mean? Can he “take a hit” in a public place? His home ?

These are the kinds of sensitive issues that the Judicial Council should have attempted to resolve, had it heard Justice Brown’s case. Did he really kiss hands with women that night? Did he follow them in a strange way, before their friend punched him? A debate that we guess vaguely embarrassing for the principal concerned, even if the Scottsdale police concluded that no criminal offense was committed.

It would have had to be decided whether his conduct deserved a reprimand, a dismissal, or nothing at all.

To dismiss a judge, protected by the independence of office, his behavior must “obviously and so completely undermine” the principles of integrity. To the point where he shakes “the public’s confidence” and renders him incapable of fulfilling his duties. The step is high.

For two weeks, several jurists have answered “no” to these questions and believe that Judge Brown was the victim of a system that was too harsh, too long. This opens the door to politically motivated complaints, which would at least neutralize Supreme Court justices for a while; Chief Justice Richard Wagner simply suspended Judge Brown for four months.

To that I reply that it is not too severe, but too ineffective. We are not facing a cascade of resignations, all the same.

The reform of the discipline of judges, in the process of being adopted, will simplify the process and make it more transparent. The Chief Justice himself deplores its opacity. The investigative report on Judge Brown, which warranted a public hearing (cancelled due to resignation), should be made public. Otherwise, it can be argued that Judge Brown was treated unfairly – that is what he is saying in other words.

We would certainly not want an American-style system of ethical self-regulation. But the whole Brown affair confirms the need to refine the Canadian system as soon as possible.