A Dangerous Code for the Supreme Court
A new model ethics code is resistance by other means.
The effort to regulate the Supreme Court no longer has to contend with a blank page. The “Model Code of Conduct for U.S. Supreme Court Justices” looks to us like the rough draft for a different kind of court than Americans have come to know. It imagines hemmed-in justices and a new stare decisis more appropriate for monks than jurists in a democracy. Forget the binding of Isaac. Chief Justice Roberts, get your ropes ready.
The code is being advanced by Lawyers Defending Democracy and the Project on Government Oversight. As our A.R. Hoffman reports, the “Model Code” would commit the justices to a code of ethics that would — to a breathtaking degree — widen the circumstances in which they are required to recuse themselves and narrow the opportunities for them to speak outside of court. The Framers suggested no such restrictions.
Feature the code’s suggested rule that “no justice should sit on a case when their impartiality might reasonably be questioned, irrespective of the impact of their disqualification on the Court’s ability to hear a case with a full bench.” One man’s reasonableness is another’s madness. Note, say, the persistent outcry against Justice Clarence Thomas. Turn the volume up high enough, scream loud enough, and you lose the signal for the noise.
Mark the word “reasonableness.” For what a rule on reasonableness can wreak, turn to the Holy Land, where a judicial controversy is tearing the country apart. The controversy centers on the ability of its high court to review legislation to strike down any law that falls outside the “margin of reasonableness.” It has teeth, and was recently used to bar from the government a duly selected minister, Aryeh Deri of the Shas party.
It is true that the current law mandates recusal, even for justices, when the jurist’s “impartiality might reasonably be questioned.” That standard is loose enough to give rise to the current recusal chorus. Embracing the code’s recommendation that a “variety of circumstances may give rise to a justice’s disqualification” would only worsen the problem of selective sitting. The requirement of a “written explanation” for these decisions strikes us as make-work.
Not to be missed is that the “Code” is indifferent to the court’s “ability to hear a case with a full bench.” Meaning, to function at all. One or two recusals could impair a court that already hears precious few cases. This is where the “duty to sit” comes in. It was best articulated by Chief Justice Rehnquist, who contended there is a “duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified.”
It’s no coincidence that efforts to regulate the justices are coming in the wake of the reversal of Roe v. Wade, strong rulings in favor of religious freedom, and the buttressing of the Second Amendment. This movement is resistance by other means. The Supreme Court the “Code” contemplates is so constricted and entangled by conflicts that it can hardly sit, let alone adjudicate. The horrifying idea is “if you can’t beat ’em, recuse ’em.”