The Supreme Court Against Itself

An idea of an ethics code appears to have riven the Supreme Court, marking the folly of an effort to bind the Nine that was ill-conceived from the get-go. For the court’s critics — largely Democrats ruing Roe v. Wade — no code, not even Hammurabi’s, would be draconian enough to hem in a court with a conservative tilt. That makes it all the more shocking that the liberal justices have joined this effort to mortgage the court’s independence. A report of division among the sages comes from the Times. It reckons that disagreement has broken out over whether the Code of Conduct adopted by the court last year is remiss in not including an enforcement mechanism — likely lower court judges who would sit in judgment of their superiors. Justice Neil Gorsuch, the Times relates, was “especially vocal in opposing any enforcement mechanism beyond voluntary compliance.”Justices Clarence Thomas and Samuel Alito also oppose a move toward compelled enforcement. The Times reports they see the “court’s critics as politically motivated and unappeasable.” They should know. The two have borne the brunt of the left’s outrage, and know whereof they speak. The Times says that “all three liberals — Justices Sotomayor, Kagan and Jackson — supported enforcement.” Justice Kagan appears especially frantic. In public remarks in September the justice floated the idea that district and circuit court judges “would be assigned the task of dealing with complaints about our behavior,” meaning that of the Nine. She also broke new ground — not good turf, we reckon — when for the first time she appended to a notice of recusal a reference to the Code of Conduct for United States Judges — which binds all federal judges but not the justices.This space has acknowledged Justice Kagan’s qualities as a jurist. “Chief Justice Kagan” has a convincing ring to it. All the more baffling, then, that she would contemplate having the highest court — the only court established in the Constitution itself — bound by ones that convened at the command of Congress. As legal scholar Joshua Blackman put it to our A.R. Hoffman: “There is a reason the Supreme Court justices sit at the top of the pyramid.”The Times discloses that Justice Gorsuch was so troubled by an ethics code slicing into the court’s sovereignty that he authored a memorandum “raising questions and cautions” that exceeded 10 pages. The first draft of that code was prepared by “Judge Robert M. Dow Jr., a staff member who advises the chief justice.” We harbor no ill will toward Judge Dow, but note that he was not confirmed by the Senate, nor is his tenure for a lifetime.The interest of the court’s liberals in more supervision occurs amid the Democratic scheme to reshape the high court in more drastic ways — a push that Trump’s electoral victory has likely halted, at least for now. Best be careful, though. Both President Biden and Vice President Harris support action to end lifetime tenure and cripple the court in respect of immunity. It appears their cause now has support within the chambers.

The Supreme Court Against Itself

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