The “complete independence” of the judiciary, wrote Alexander Hamilton, is “peculiarly essential” for our system of government and the liberty it makes possible. For those who prize power over liberty, however, this independence is an obstacle to be overcome rather than a principle to be defended. Their latest effort to put the Supreme Court in its place is a campaign urging Congress to impose an “enforceable ethics code.”
The strategy requires leading people to believe that Supreme Court decisions they don’t like must be the result of politics, corruption, or unethical jurists. In 2019, for example, several Democratic senators filed a friend-of-the-court brief in a Second Amendment case. It concluded with these ominous words: “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself.” Their message was clear: public perception of the Supreme Court’s health depends on how it decides cases on such issues.
The current gambit is to attack the Court, and individual justices, as unethical. Critics attack Justice Clarence Thomas for not reporting personal hospitality he was not required to report; for reporting ownership, but not the sale, of a house; or for reporting rental income from a company but failing to make the correction when that company changed names. At worst, this amounts to nothing more than a few oversights that get corrected in the paperwork. But the seeds get planted, the suggestion of something untoward and troubling circulates, and the perception that something must be done starts growing.
The second part of the strategy is to offer a solution to this fake problem. The opponents of judicial independence argue that the Supreme Court should be treated the same way as lower federal courts. They point out that the Code of Judicial Conduct, and a federal statute allowing anyone to file complaints about judicial conduct, apply to lower federal courts, but not to the Supreme Court.
That, however, is an observation, not an argument, and it leaves out the fact that Congress does not have the same authority over the Supreme Court, which was created by the Constitution, as it does over the lower courts, which are created by Congress itself. It also falsely implies that Supreme Court justices have no guidelines for keeping their ethical commitments. In his 2011 report on the state of the federal judiciary, Chief Justice John Roberts explained that while certain ethical standards may not formally bind the Supreme Court, the justices comply with them and observe the same rules as other federal judges. They also “consult the Code of Conduct in assessing their ethical obligations.”
The senators who filed the “Supreme Court is not well” brief, led by its author Sen. Sheldon Whitehouse (D-RI), have now introduced S. 359, a bill to indeed treat the Supreme Court as Congress’ creation. It would require the Supreme Court to “issue a code of conduct” and would provide for any individual to file a complaint that a Supreme Court justice “has violated the code of conduct” or “any other applicable provision of Federal law,” or “has otherwise engaged in conduct that undermines the integrity of the Supreme Court of the United States.” A panel of lower court judges would, in this scheme, investigate such claims and recommend appropriate action to the Supreme Court.
It's easy to anticipate the flood of complaints against Supreme Court justices for a host of supposed infractions. After all, this is part of a campaign that equates with unethical conduct decisions that fail to advance favored political interests. And to place decisions about how higher court jurists have acted in the hands of lower court judges is surely an unprecedented inversion of our entire judicial system.
A federal statute requires recusal in certain circumstances, but judges, including Supreme Court justices, decide for themselves whether recusal is warranted in a particular case. The Whitehouse bill would have other judges second-guess those decisions, including eight Supreme Court justices reviewing the recusal decision of one of their colleagues.
This is not a new idea and, as Roberts explained in his 2011 report, “would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate.” That might just be more than an unintended consequence. Changing case outcomes by changing the Supreme Court’s composition, after all, is exactly what Court-packing is intended to accomplish.
The first part of this attack on judicial independence appears to be working, with several polls in the last year showing that about 60 percent of Americans believe the Supreme Court decides cases based on politics rather than law. If that perception takes root, and the strategy succeeds, the judicial independence that is essential for our liberty may be lost forever.
This piece originally appeared in Christian Renewal