https://www.city-journal.org/article/ethics-proposal-would-undermine-the-supreme-court
Wielding “ethics” violations against one’s political foes is a Washington tradition. When it comes to ethics and the Supreme Court, observers should not be deceived. Current attacks on the justices’ ethics are bad-faith political barbs intended to undermine the Court—not expressions of genuine concern over actual transgressions. And the policy reforms being suggested to solve this nonexistent problem would do enormous damage to our most important legal institution while producing few, if any, countervailing benefits.
The latest proposal, which Justice Elena Kagan herself has championed, is to create an “enforceable” code for the justices. Details are sparse, but the basic idea is to empower lower court judges—whose work the Supreme Court reviews—to police the justices’ alleged ethical violations. Apparently, the chief justice would decide which lower court judges to endow with this extraordinary authority. Precisely what investigatory and enforcement tools those judges would wield remains unstated.
This proposal has several fundamental problems. For starters, it would give a future chief justice extraordinary power over his or her colleagues—power that some future, malevolent chief justice could easily abuse. By selecting the lower court judges who stand in judgment of the justices, the chief justice could put a thumb on the scale of those determinations. Gaining an upper hand on an intractable colleague would be as easy as stacking the ethics panel with that colleague’s antagonists. We can certainly hope no judge would abuse such authority. But to borrow from the old adage—if judges were angels, no ethics panel would be necessary.
And consider this dynamic in the context of a problem facing the Court right now: leaks of confidential information. Last weekend, the New York Times printed an exposé on the most recent Supreme Court term, replete with details of internal memos, the justices’ deliberations, and more. We have no idea who leaked this sensitive information to the Times—and particularly whether any justice was involved—but the leaks appear designed to undermine Chief Justice John Roberts and cast an unflattering light on the Court’s majority in certain important decisions. The judiciary’s ethical canons flatly prohibit politically motivated leaks of confidential judicial deliberations. Canon 4(D)(5) states: “A judge should not disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judge’s official duties.” Presumably, a campaign to influence the chief justice and his colleagues by leaking “nonpublic information” to the New York Times would meet that description.