Democrats have been in like, if not in love, with liberal Harvard Law School professor Laurence Tribe for decades. In 1987, for example, they used his little book God Save This Honorable Court as a manual for defeating Supreme Court nominee Robert Bork. They huddled with Tribe at a Florida retreat in 2001 to plot strategy for “chang[ing] the ground rules” in fighting President George W. Bush’s judicial nominees.
Today, however, Democrats are ignoring Tribe’s advice in their current “ethics” campaign to control the Supreme Court.
Judicial ethics issues fall into categories: financial disclosure, recusal, and off-the-bench activities. Democrats and their allies among left-wing groups and in the media want you to believe that the Supreme Court, alone among all federal courts, is out of control because no rules govern the justices’ actions in these areas. This is a lie.
The federal statute on financial disclosure and the statute on recusal, both enacted in the 1970s, apply to all federal judges, including the Supreme Court. The Code of Conduct for United States Judges provides guidance regarding “extrajudicial activities.” It technically applies to the lower federal courts because the Judicial Conference of the United States, which produced it, only has authority there.
For decades, however, Supreme Court justices have consulted this code for the very same guidance. They adopted a resolution in 1991 to do so and repeated this commitment just last month when all nine justices signed a Statement of Ethical Principles and Practices.
Democrats must distract from these facts because they undermine the fiction that the Supreme Court is going ethically rogue. Three bills introduced by Democrats promote this fiction: S. 359 by Senator Sheldon Whitehouse (D., R.I.), S. 325 by Senator Chris Murphy (D., Conn.), and S. 1290 by Senator Angus King (I., Maine). Each would require issuance of a Supreme Court code of conduct.
The Whitehouse bill, for example, would require the Supreme Court to issue its own code of conduct. The bill says nothing about what this code must cover, how it would affect the justices’ longstanding commitment to follow the other one, or how it would be enforced. To make things even more confusing, under the Whitehouse bill, the Supreme Court may change its conduct code as it sees fit.
Here’s where Professor Tribe comes in. In advance of the Senate Judiciary Committee’s May 2 hearing on Supreme Court ethics, Chairman Richard Durbin (D., Ill.) asked for views from Tribe and former U.S. Circuit Judge J. Michael Luttig, a well-known conservative. They don’t agree on much, but were together in asserting that Congress has no authority to require the Supreme Court to issue an ethics code. Tribe, in fact, was particularly critical, writing that this would be a “stark violation of the separation of powers.” This echoed the testimony at the hearing of former Attorney General and U.S. District Court judge Michael Mukasey.
Congress could require that the Judicial Conference issue a code of conduct for the lower federal courts because Congress created them. The Constitution, however, created the Supreme Court and, therefore, Congress does not have the same authority.
The Murphy bill would also require a conduct code for Supreme Court justices, but direct that the Judicial Conference produce it. As the statute creating it provides, the Judicial Conference has authority only over the lower courts. In fact, for purposes of organization and governance, federal law defines “courts” as the U.S. Court of Appeals, U.S. District Court, U.S. Court of International Trade, and territorial courts.
Despite all the hand-wringing and warnings of an ethics apocalypse, however, producing an ethics code for the Supreme Court—even if Congress had authority to require one—is actually not the primary objective of these bills. That was just the first step. The real purpose is to create a process for anyone and everyone to file unlimited, even completely baseless, complaints against any justice, accusing them of doing virtually anything the complainer doesn’t like.
Under the Whitehouse bill, for example, complaints could allege that a justice has violated the as-yet-unknown ethics code, the recusal statute, “any other applicable provision of Federal law,” or—and here’s the kicker—any “conduct that undermines the integrity of the Supreme Court.” The bills say nothing about the form such complaints must take, whether there must be any evidence supporting an accusation, or that they must do anything more than state vague, subjective accusations.
Here’s what this would look like. The recusal statute contains a general provision requiring a judge or justice to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Under the Whitehouse bill, a complaint does not need to say anything more than that a particular justice’s decision not to recuse from a particular case raises a question about that justice’s impartiality. That question may exist only in the complainer’s head, but here we are.
Or consider this scenario: The Left has repeatedly argued that how the public should view the Supreme Court’s integrity depends on how it decides cases on certain issues. Who hasn’t heard this charge against the Court’s decision in Dobbs v. Jackson Women’s Health Organization, holding that the Constitution “does not confer a right to abortion”? Or against New York Rifle & Pistol Association v. Bruen, striking down a ban on handguns outside the home? Whitehouse led a group of Senate Democrats on a friend-of-the-court brief in Bruen asserting that this result would prove that the Supreme Court is “not well.”
The Left, after all, has been pushing this politicized narrative for years, and it may just be working. A recent poll found that 62 percent of Americans say that Supreme Court justices’ personal views or politics, rather than legal analysis, “often” drive their decisions. If that is so, then it’s only a small step to view the legitimacy of decisions, or the integrity of the Court, through that political lens.
Tapping into this trend, the Whitehouse bill would invite an avalanche of complaints that the Supreme Court’s integrity has been undermined solely because its decisions in certain cases do not advance liberal political interests. The inevitable result will be to further distort the public’s understanding of how the Supreme Court decides cases, degrade confidence in the Court across the board, and taint decisions that the Left doesn’t like.
But there’s more. Under the Whitehouse bill, every complaint must be addressed by a “judicial investigation panel” composed of five of the chief judges of the U.S Court of Appeals’ 13 circuits. These panels, a different one for each complaint, “may hold hearings, take sworn testimony, issue subpoenas . . . and make necessary and appropriate orders.” The bill says nothing about how these panels should evaluate complaints, the standards they should apply, or what to do about endless, repetitive, or vague complaints.
This piece originally appeared in the National Review