The Senate Judiciary Committee invited Chief Justice Roberts to attend a meeting to discuss ethical matters. He assured the committee that the justices were voluntarily following ethical rules. However, he argued that showing up, even voluntarily, would violate the separation of powers.
This claim was false, as justices had attended Congressional meetings in the past, even in tag teams of liberal and conservative justices, to discuss the budget. During this meeting, there was talk of creating a code of ethics, which even individual justices like Kagan and Barrett supported.
Now, without any prior notice, we have received this press release:
The Court has today issued the attached Code of Conduct for Justices of the Supreme Court of the United States.
In many ways, the “canons” announced on Monday largely track the existing Code of Conduct for Federal Judges. A few of these are questionable, including such things as:
FUNDRAISING: A judge may participate in and serve as a member, officer, director, trustee, or nonlegal advisor of a nonprofit organization devoted to the law, the legal system, or the administration of justice and may assist such an organization in the management and investment of funds.
Prof. Leah Litman flagged this as appearing to allow the justices to be involved in the Federalist Society and other conservative organizations. But, it is not a special rule. It applies to federal judges too.
Much more dubious are the changes:
Canon 2B adds the word “knowingly” — twice — to the provisions warning against “lend[ing] the prestige of the judicial office to advance the private interests of the Justice or others” or “convey[ing] or permit[ting] others to convey that they are in a special position to influence the Justice.”
What is the justification for this? Since they didn't show up, no need to say! The law-related activities they can ethically be involved with also have an extended "limitations and considerations" section added. Why? The general assumption one makes is that they are fit for the justices' own activities.
There is an exception for recusal when the justice is involved with amicus briefing. This at least could be explained by the argument justices have a "duty to sit" in cases and there is no ability to replace them. Lower court judges are part of bigger panels and judges outside of the panels can also replace them as necessary.
Recusals are rarely truly an issue for justices. For instance, Justice Jackson was recused from one college affirmative action case but was able to take part in another. The justices usually can find a "clean" case. And, even if a justice does not take part, the quorum is six. There is only an issue if so many can't take part or if there is a tie.
Five rather thin summary pages of commentary explain the code to some extent, including the "duty to sit" business. The "knowingly" business does not appear to be addressed. Hopefully, someone will do a deep dive and analyze things in depth.)
I think Congress can create rules to replace justices who do not participate. The safest option would be to appoint a retired justice. However, I don't believe it's unconstitutional for a lower court justice to take part. Although parsing over the term 'one' Supreme Court might be needed, I still think it's achievable with some finesse.
It's certainly less questionable than attempting to establish a statutory term limit regime."The central difference between the justices' code of conduct is the lack of an enforcement mechanism. It is appreciated that Senator Chuck Schumer, Sheldon Whitehouse, and others flagged this problem. The Necessary and Proper Clause authorizes Congress to "fill in the gaps" regarding all constitutional powers. They should do so here.
[Steve Vladeck flagged the possibility of an inspector general.]
Why did the Supreme Court release a code of conduct at all, putting aside confusion on why they changed specific matters? Note the code is filled with "shoulds" and "mays." A statement is provided to explain why, especially since "most" of the provisions are not new, and the justices allegedly have been "guided" by them so far.
The absence of a Code, however, has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules. To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct.
I think that the statement overall was required to have every justice, especially Thomas and Alito, to sign. Whatever the reason, the whole thing is a mixture of bullshit, and "you know this whole thing is CYA, right?"
The problem is not that there is some "misunderstanding" about justices being unrestricted. The public, especially certain parts of it, has learned about blatant violations by Justice Clarence Thomas. They also learned about things Justice Alito is doing, including working with the Wall St. Journal to make it his personal paper of record. They saw other justices doing less blatant, but still dubious things, including (to toss it in) Ginsburg making comments about Donald Trump.
There is no "misunderstanding" really. The justices are acting as if they are unrestricted. At the very least, they are acting in multiple ways that suggest they believe themselves much too unrestrained by ethical rules Fix the Court provides a lot more details there. The justices are clueless (there is some of that) if they deny this. I doubt they're that clueless.
They are arrogant too, including because -- unlike other federal judges -- they do not have binding ethical rules. The fact they were compelled to do this -- which is the bare minimum (they merely used the existing rules and then watered them down in certain ways!) -- suggests they realize the public reaction is troubling. It is shown by the decrease of respect for the Court. It's hard for me to be much impressed by this all the same.
Still, you use what you have. People can cite the specific code of conduct now and point out how the justices failed. The failure is limited by multiple quantifiers, including what "reasonable" people would deem inappropriate. This underlines the need for an enforcement mechanism, including a formal means to challenge their actions and a process to investigate.
This should not be a partisan thing. The inspector general proposal was cosponsored by Chuck Grassley, the former Republican chair of the Judiciary. The slipshod investigation of the Dobbs leak is something both parties should care about. But, the Supreme Court is 6-3. It's there guys. So, it will be hard to get anything done. Push and do what you can.
Start with a subpoena of Harlan Crow and Leonard Leo.
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[After some commentary came in]
The commentary is starting to come in. And, there is enough "this is Calvinball" for me to be even more annoyed.
A few liberal critics have noted, "Well, this shows that public pressure works, since they didn't even want to do this." Uh-huh. I understand it is a long haul. They are making it hard for me to consider this much of a "clear win," to use a term such critic used. "Not nothing" is a low bar.
There is a good case to be made that it is "worse than nothing" since it blesses what is going on, now with the gloss of a "code of conduct." Chris Geidner and others are somewhat miffed when people say this is a "nothingburger," but maybe that is too generous:
My colleague Adam Serwer, who covers political and legal issues for The Atlantic, told me that “much of the conduct that has exposed the justices as partisan actors” would not seem to be prohibited by these guidelines. The code is not a move toward stricter ethics rules; rather, Adam argued, it might have the opposite effect: “It is an attempt to remove any motivation for Congress to impose restrictions on the Court that have actual teeth.”
Sen. Dick Durbin answered it was a milquetoast statement on the Senate floor in which he spent over half his time talking about something else. Sen. Whitehouse leads with the need for a binding ethics law.
ETA: The last blockquote was added after I reposted this entry to have a clean copy without multiple updates. The number of negative responses is a telling thing. Is this more "misunderstanding," Mr. and Mrs. Justices?