Supreme Court Ethics: No Good Will Come of It

Will the Supreme Court’s new Code of Conduct be enough to placate the Congressional Democrats baying for authority over the high court? Not a constitution’s chance in Hell. The fact that the Nine felt compelled to issue restrictions on its conduct is, in and of itself, a sign of how damaging the Democrats’ campaign has been to the independence of what is, constitutionally speaking, a co-equal branch of the federal government.No wonder the justices sought to present the code — released quietly this afternoon — in the most nonchalant way possible. The rules, they contend, are being issued merely “to set out succinctly and gather in one place the ethics rules and principles that guide the conduct” of the justices. “For the most part these rules and principles are not new,” the sages suggest. They claim that the court “has long had the equivalent of common law ethics rules.”Yet the justices — all nine of whom signed the statement issuing the new code — appeared to see the need for a kind of apology, noting how “the absence of a Code” (meaning the Democrats’ fury at Dobbs v. Jackson Women’s Health Organization) had “led in recent years to the misunderstanding” that the Nine “unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.” Hence the purported need for the new code, the justices say — “to dispel this misunderstanding.”In doing so, the court appears to be sidestepping a kind of Battle of the Branches that was sketched by Justice Samuel Alito in remarks this summer. He spoke as pressure from Senate Democrats and the press was rising in crescendo to crimp the powers of the court by imposing on the justices a legislated code of conduct. Notably, the left sought to constrain the justices’ ability to decide for themselves whether to hear cases or recuse themselves.Even as Justice Alito noted that he and his berobed colleagues voluntarily hewed to “disclosure statutes” covering joeys in inferior courts, he was having none of it. “Congress did not create the Supreme Court,” he explained to the Wall Street Journal. Rather, the court, like the Senate itself, is a Constitutional creation. “No provision in the Constitution,” he goes on to say, gives members of Congress “the authority to regulate the Supreme Court — period.”Put another way, the Constitution grants Congress no power to regulate the Supreme Court. Congress gets all sorts of powers, of course — to tax, spend, declare war, build postal roads, issue letters of marque and reprisal, borrow money on the credit of the United States, raise an army, provision a navy. The Framers went over it with a fine tooth comb. If they wanted to empower Congress to regulate the court, they could have. Yet didn’t.Nor, would we add, can the code issued today bind any future members of the court. Justice Alito allowed as his view of the matter might be “controversial.” Asked if his fellow justices agreed, he demurred, noting only that it was “something we have all thought about.” Yet the release of the code today suggests that to the extent the other justices gave the matter any thought, they sought to try to appease the Democrats in the Senate.Will the new code suffice? Remarks by Senator Whitehouse, one of the most strident left-wing critics of the court, suggest not. The ink was hardly dry on the code when he started griping that the policy lacked an enforcement mechanism. “A code of ethics is not binding,” he said, “unless there is a mechanism to investigate possible violations and enforce the rules.” He mocked the court’s “honor system” for managing its ethical practices.This followed Mr. Whitehouse’s remarks last week calling Justice Alito’s defense of the court’s independence “weird.” The senator speculates that Justices Alito and Clarence Thomas were thwarting an ethics code imposed by Congress because they “seem to be the ones with their hands furthest in the cookie jar” and “seem to be liking billionaire-funded lifestyles of the rich and famous.” Hence the Senate drive to subpoena Harlan Crow and Leonard Leo.The real motive for scrutinizing the court is to roll back the majority’s originalist jurisprudence, especially after Roe v. Wade was overturned. One would think — or at least hope — that Chief Justice Roberts is aware of this. He has noted that the judiciary’s “power to manage its internal affairs” is critical to preserving the courts “from inappropriate political influence,” as “a separate and coequal branch of government.” Nothing “weird” about it.

Supreme Court Ethics: No Good Will Come of It

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