James Burnham A Supremely Bad Idea The proposed “ethics code” for the justices is a misguided solution to a nonexistent problem.
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.
It’s a fair question, then, how the proposed ethics panel would address this prima facie ethical violation at the Court. Someone at the Supreme Court provided confidential information to reporters. Would the chief justice’s hand-selected panel of lower court judges conduct a leak investigation at the Court? Would the ethics panel have compulsory process over Court staff? What about the justices themselves? Could the ethics panel demand internal documents from the Court? Could the ethics panel sanction a law clerk, staff member, or justice who refuses to participate in its inquiry? These questions would arise immediately if such an institution existed.
It’s also unclear how the proposed ethics panel would enforce its determinations. Allowing lower court judges to force the recusal of specific justices is a recipe for disaster: it would create the real prospect of an obscure judicial panel changing the outcome of an important Supreme Court case. Or perhaps the panel could go further and suspend offending justices? That would be even more calamitous, enabling the chief justice’s lower court appointees to change the composition of the Court without regard to life tenure, presidential appointment, or Senate confirmation.
This is not some remote prospect. The U.S. Court of Appeals for the Federal Circuit has been embroiled for some time in a contentious battle arising from its chief judge’s successful effort to suspend an elderly colleague from judicial service. Firsthand accounts suggest that the suspended colleague is fully able to discharge her official duties and raise the prospect that her actual offense is disagreeing with her colleagues. Whoever is correct in that imbroglio, it is hard to see why we would want to import such chaos into the nation’s highest court.
Another possibility is monetary fines, but these are equally susceptible to mischief. By joining the Court, the justices have already surrendered great wealth in the private sector, in addition to subjecting themselves to vulgar protests and personal attacks. Putting them on the additional hook for fines—calculated through unknown formulas by judges with unknown motivations—would deepen the justices’ already substantial sacrifice. And the authorization of personal monetary sanctions would present obvious potential for retaliatory action between judges and justices and broader intra-judicial conflict.
Nor is there any actual enforcement gap for a proposed ethics panel to fill. The Constitution already gives Congress a tool to police genuine wrongdoing—impeachment. Congress famously tried to abuse this power by impeaching Justice Samuel Chase in 1804 in retaliation for rulings it did not like. That effort failed, and the partisan impeachment of justices went by the wayside. But Congress retains the power to act if true cause arises, and it has done so on occasion with misbehaving lower court judges.
Finally, and perhaps most importantly, a judicial ethics panel is a classic solution in search of a problem. The press has been busy smearing the justices—attacking the justices for failing to report long-ago travel in compliance with then-governing reporting requirements and general practices, impugning their spouses’ personal and professional activities, and more. Missing from this onslaught, however, is a single credible allegation that any justice has abused his or her office in any way. Despite years of dirt-digging, not one partisan excavator has found a speck of actual corruption.
It should be obvious what’s happening here. Those unhappy with the Court’s recent decisions are seeking revenge. It would be a supremely bad idea to upend a judicial structure that has served our nation for over two centuries to get payback against the justices for a handful of rulings. Pursuing this course would bring untold, unpredictable consequences for the rule of law and destabilize a legal system that has long protected us all. This latest ethics proposal should go to the same place as past proposals to undermine the Supreme Court—the dustbin of history.
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