The Senate Judiciary Committee held a hearing Tuesday on “Supreme Court Ethics Reform.” The title implies that Supreme Court ethics need reform and that Congress can do the reforming.
The hearing failed to make that case.
Everyone agrees on the critical importance of public confidence in the judiciary’s impartiality and integrity, and that that confidence is on the decline. That observation, however, raises the question of what’s causing the decline.
Democrats and their allies among left-wing groups and the media, after all, have relentlessly accused the current Supreme Court of partisanship and bias, even warning certain justices not to make the “wrong” decisions in certain cases.
There was Senate Democratic Leader Chuck Schumer, D-N.Y., on the Supreme Court steps in March 2020, calling out Justices Neil Gorsuch and Brett Kavanaugh and shouting that they had “released the whirlwind” and would “pay the price” if they continue making “awful decisions.”
And there was Sen. Sheldon Whitehouse, D-R.I., and four Democratic colleagues filing a brief in a Second Amendment case that closed this way: “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself” before being forced to do so.
Or there was Whitehouse claiming, through the liberal American Constitution Society, that the GOP appointees to the court consistently deliver decisions that “advantage the big corporate and special interests that are, in turn, the political lifeblood of the Republican Party.” Not surprisingly, his methodology is itself deeply ideological, but even if he were right about the pattern, his own analysis would show that the Democratic appointees just as consistently oppose those interests. It’s funny that Whitehouse’s diatribes on this subject are always focused in one direction.
He and other Democrats were just as glaringly one-sided in Tuesday’s hearing.
Failing to report consulting income by Justice Clarence Thomas’ spouse is an ethical apocalypse, but unreported consulting income by Justice Ketanji Brown Jackson’s spouse warrants not a whisper. Thomas staying at a close friend’s home or traveling on the friend’s plane is nothing less than the “rich and famous” subsidizing his “lifestyle,” but there was not a peep when the now-deceased Justice Ruth Bader Ginsburg’s 2018 trip to Israel—transportation, food, and lodging—was paid for by billionaire Morris Kahn.
Oh, there is one difference between those Thomas and Ginsburg examples. Thomas’ friend, Harlan Crow, did not have business before the Supreme Court, while Kahn, Ginsburg’s benefactor, did.
That same year, Justice Stephen Breyer took a trip to Ireland and Spain, with his transportation, food, and lodging paid for by billionaire J.B. Pritzker, the current Democratic governor of Illinois. No mention of that by Senate Democrats either.
No one should accept that this supposed concern about judicial ethics is genuine until, at the very least, Democrats apply the same standard across the judicial board and call out similar actions by their favorite justices.
At the hearing, Democrats insisted that Supreme Court justices should be subject to a formal ethics code, just as lower court judges are. Congress’ authority over the lower courts is not in dispute. Congress created the lower courts as well as the Judicial Conference to make policy for them. The Judicial Conference, in turn, issued the Code of Conduct for United States Judges.
Democrats, however, did not mention that this conduct code, even for lower court judges, merely provides “guidance” for making various kinds of decisions. For decades, Supreme Court justices have consulted the same code for the same reason, for guidance in making the same kind of decisions. All nine current justices reiterated this commitment in a Statement on Ethics Principles and Practices provided to the Senate Judiciary Committee last week.
The bigger issue, however, is that the Constitution, not Congress, created the Supreme Court. At the hearing, Michael Mukasey, a former attorney general and former U.S. district judge, argued that, therefore, Congress does not have authority to impose an ethics code on the Supreme Court.
The three Supreme Court ethics bills introduced by Democrats, including Whitehouse, instead require the court itself or the Judicial Conference, which has no authority over the Supreme Court, to produce a code.
Mukasey is not the only one to argue that this approach—Congress requiring the Supreme Court to produce its own code—is unconstitutional. Before the hearing, Sen. Dick Durbin, D-Ill., the Judiciary Committee chairman, invited two well-known constitutional experts to share their views on these issues. Former U.S. Circuit Judge J. Michael Luttig and Harvard Law School emeritus professor Laurence Tribe—the former conservative, the latter liberal—agreed that Congress cannot force the Supreme Court to take this step.
Tribe was especially sharp in his criticism, writing that, in his view, an ethics code was a legislative step for Congress that “the Constitution … does not permit Congress to foist on a coordinate branch.”
As if that were not constitutionally bad enough, it appears that those bills’ real objective is to create an easy way for political activists to increase, rather than decrease, pressure on and harassment of the justices whose decisions those activists might not like.
The Whitehouse bill, for example, would allow anyone to file unlimited complaints accusing a justice of violating any provision of an ethics code, the federal recusal statute, or anything that “undermines the integrity of the Supreme Court.”
This amounts to an attempted hostile takeover of the court.
The Left has made clear that decisions that do not reliably advance liberal political interests are unethical, and that an approach to deciding cases that does not yield consistently liberal results undermines the Supreme Court’s integrity. Bills like these would guarantee ongoing, organized campaigns to file a barrage of complaints of every conceivable kind against justices who interpret and apply the Constitution impartially.
Some members of Congress even want to withhold funding for Supreme Court security until the court caves to the demand for an ethics code.
Not only would that—and smears of certain justices—hasten the downward slide in public confidence, it actually attempts to harness that negative perception to make the Supreme Court deliver the political goods.
No one says that the Supreme Court should not be ethical or accountable. But the three branches of government are not the same, and neither are the Supreme Court and the courts that Congress creates.
Ironically, the Constitution gives the Senate and House of Representatives the power to determine their own rules of proceeding. Unfortunately, the Left refuses to give the same respect to the Supreme Court.
This piece originally appeared in The Daily Signal