Photograph Source: Mathieu Landretti – CC BY-SA 4.0
On November 13, the US Supreme Court — presumably motivated by bad publicity after the exposure of bribery schemes involving justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, use of judicial aides to promote Justice Sonia Sotomayor’s books, and other unsavory activities — announced what it calls a “Code of Conduct,” and what most media outlets describe as an “ethics code.”
The new code goes off the conduct/ethics rails before finishing its short opening statement, asserting that its purpose is to “dispel” the “misunderstanding” that the justices “regard themselves as unrestricted by any ethics rules,” rather than to actually restrict the justices with any ethics rules.
Because the document — 15 pages, including the opening statement, the “code” itself, and commentary/notes — doesn’t provide for any penalty or punishment whatsoever should a justice violate it, the justices remain as unrestricted after its publication as they clearly regarded themselves before.
Even ignoring the absence of consequences, the code itself is full of lofty and often ambiguous “shoulds” and “should nots” rather than specific and well-defined “shalls” and “shall nots”.
As codes go, this one’s far more Emily Post than Exodus 20. It’s not about what the justices may or may not do, it’s about how the court wants or doesn’t want to look.
Does anyone find this surprising? Letting government agencies regulate themselves always results in government agents (especially those who regard themselves as enjoying tenure for life) leaving themselves room to do whatever they like.
In theory, Congress can impose binding rules on the Supreme Court. Contra Justice Samuel Alito (“No provision in the Constitution gives them the authority to regulate the Supreme Court — period”), Article III of the US Constitution specifies that the justices hold their seats “during good Behaviour,” and that the court operates in its appellate capacity “under such Regulations as the Congress shall make.”
In practice, impeaching individual justices seems like the best way of imposing the “good Behaviour” requirement, but that remedy’s only been applied once, and threatened once more, in 240 years. In 1804, Justice Samuel Chase was acquitted by the Senate. In 1969, Abe Fortas resigned from the court under impeachment threat.
The “checks and balances” system seems, unsurprisingly, to not work very well. The Supreme Court remains at least potentially on the take … if you’ve got the money to buy the rulings you want.
“Put not thy trust in princes,” the Bible tells us. Under which label I’m inclined to include lifetime political appointees.
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