The measure advanced today in the House of Representatives to propose a jack-leg code of ethics on the Supreme Court is a worse abuse of power than the attempt of Franklin Delano Roosevelt to get the 75th Congress to add as many as six justices to the supreme bench. The court-packing foundered before it became law but has stained FDR’s reputation for generations. There are at least some historians who reckon even the attempt cowed the justices.Yet what is happening today is far more cynical. The packing of the court, after all, would merely have expanded the number of justices. It would not, however, have eroded the separation of powers. The imposition of a code of ethics, in contrast, would give a handle to parties, litigants, Congress, the executive branch meddlers, and various non-profit, lobbying, and advocacy groups to put individual justices in a vise.The scheme to subject the justices to a “code of conduct” was endorsed Tuesday evening in a party-line vote of a Judiciary Committee that is controlled by the Democrats. The measure also includes expanded recusal rules and a pet project of Senator Whitehouse, requiring financial disclosures by individuals and organizations who file friend-of-the-court briefs. Democrats are claiming it’s an anti-corruption measure.The idea, in Mr. Whitehouse’s view, is to smoke out conflicts of interest with those funding amicus briefs filed with the Nine. He views the conservative justices as the pawns of “Republicans and their big donors.” He contends the GOP and allied “corporate, polluter and partisan donor interests” use the court to “achieve political gains there that they cannot win in Congress.” Like an ethics code, it exposes the court to meddlers.The scheme for an ethics code can be traced, in part, to a memo circulated among Judiciary Committee members by Congressman Hank Johnson, a Georgia Democrat who chairs the panel’s courts subcommittee. Mr. Johnson spoke of a code of conduct for judges and “Congress’s impeachment authority” as being “one form of regulation of the conduct of Supreme Court justices,” in the memo, obtained by The Hill.“Threats or inquiries of impeachment as a means of regulating the conduct of Supreme Court justices have had varying effects,” Mr. Johnson wrote. Examples include Justice Abe Fortas, who stepped down in 1969 after ethics concerns were raised, and Justice William O. Douglas, who, the Hill writes, “sat on the court for five more years” after a Judiciary Committee vote on party lines “to take no action following a 1970 impeachment inquiry.” Mr. Johnson’s memo reckons that the impetus to impose a code of conduct on the Supreme Court has grown “following the reporting about text messages between the spouse of an associate justice and the then-White House Chief of Staff.” The reference is to Justice Clarence Thomas’ wife, Virginia, who has come under a cataract of criticism from the left for her conservative political activism. Following the leak of Mr. Johnson’s memo, a Republican aide on Capitol Hill advised the Hill that the April 27 subcommittee meeting to discuss the purported need for a code of ethics or conduct was “nothing more than step one in impeaching Justice Thomas.” That marks an escalation of recent rhetoric calling for Justice Thomas merely to recuse himself in some of the big cases before the Supreme Court.No longer content with that ambition, the Democrats appear intent on exploiting the recent leak of a draft majority opinion by Justice Samuel Alito in a pending abortion case that could overturn Roe. Mr. Johnson fretted that if the release of the document were “done or directed by a member of the court, that justice would face no consequences” due to the absence of “a code of conduct.”This is a moment to remember that for all the pressures to recuse themselves in cases of a conflict of interest, the justices have a countervailing obligation — the one Chief Justice Rehnquist once called the “duty to sit.” That duty, Rehnquist argued, was particularly strong in respect of justices of the Supreme Court, for whom no one can fill in and from whom there is no appeal — except, we don’t mind saying, to the newspapers.
