Is the Supreme Court in an Ethics Crisis?

Heritage Explains

Is the Supreme Court in an Ethics Crisis?

Is there currently a need for ethics reform at the Supreme Court? Heritage Senior Legal Fellow Tom Jipping explains what’s really going on at the highest court in the land.

John Popp: From The Heritage Foundation, this is Heritage Explains.

Mark Guiney: The next time you visit the U.S. Capitol Building in Washington, D.C., before you head over to visit us at The Heritage Foundation, take a stop at One First Street, Northeast. There you’ll find a majestic marble building held up by soaring columns adorned with historic symbols of justice and judgment. This, of course, is the U.S. Supreme Court. The court system in the U.S. was formed by Congress through the Judicial Act of 1789.

President George Washington appointed Virginia diplomat John Jay, the first Chief Justice of the Supreme Court, and then the Supreme Court did very little for the first few years. The judges had robes and wigs, but very few cases to hear. The court system moved slowly in those days and the appeals process was even slower. The first Supreme Court justices didn’t have much to do. It’s hard to imagine that now. At this building, so many of the rifts in our society find a way towards resolution and bring with them the news coverage, analysis, and sometimes protest that we’ve come to expect.

Our current political climate has led to accusations that the court is somehow ethically compromised and legislation of some kind is needed. But is that true? I sat down with Heritage Senior Legal Fellow Tom Jipping to find out.

Tom Jipping: Thomas Jipping. I’m a senior legal fellow in the Meese Center for Legal and Judicial Studies.

Guiney: And you’ve been doing legal and judicial stuff for a while.

Jipping: Long time.

Guiney: And apropos to the conversation that we’re about to have here, you were in the room when Justice Clarence Thomas was confirmed by the Senate.

Jipping: I was.

Guiney: Was it like being there?

Jipping: One of the first things I did when I came to Washington was, and that was in 1989, first encouraging his appointment to the U.S. Court of Appeals, but then the organization I worked for was primarily responsible for organizing the grassroots side of things in terms of promoting his appointment to the Supreme Court. Yes, I attended all of the regular hearing, and then the Anita Hill hearing. I’m actually pictured on the cover of one of the books that was written about it. It’s really tiny and probably only I know that’s me, but I’m there.

Guiney: And of course, his confirmation hearing along with that of several other conservative justices has been rather fraught.

Jipping: And for the same reason. The big debate has always been about how judges should do what they’re supposed to do. Judges interpret and apply the law to decide cases, but the big question is, well, what’s the best or right approach to interpreting statutes or the Constitution? It’s actually a very practical question. You’re getting married. Your fiance writes you a note. Well, what are you doing when you interpret it? You’re trying to figure out what did she mean by what she wrote? We interpret things all the time, and that’s what courts are supposed to do with the Constitution.

But that’s a problem if your political agenda requires a politically driven judiciary to get it done. Abortion is a great example. The right way to interpret the Constitution won’t find things written in it that aren’t there, like a right to abortion, so the court made it up. If that’s what your political agenda requires, you are going to resist the appointment of judges who just take the Constitution as it is. Justice Thomas is one of those. Justice Kavanaugh is one of those. What are you supposed to do?

If you weren’t able to keep them off the Supreme Court, the next strategy is to try to diminish the significance of their service on the Supreme Court. That’s what’s going on today. We have a majority of justices on the court today who take the original traditional approach to interpreting and applying the law. They’re not going to make it up. They’re not going to push it to achieve a political agenda. That’s for the legislatures and that’s for other people to do.

The left is trying to undermine their legitimacy, trying to suggest to people that, well, these decisions we don’t like, they must be corrupt in some way. They must be unethical. These justices must be biased in some way. What I probably did when I was eight or nine years old, if you don’t like somebody, you badmouth them and you say to the other kids, “Did you hear this about so-and-so,” and this kind of thing. You’re trying to just ruin their reputation or something, right? But that’s what’s going on today and there’s a lot at stake in trying to do it.

Guiney: In Congress right now, there’s a lot of folks talking about passing legislation that’s meant to address what they are calling an ethics crisis on the Supreme Court. Can you talk about that legislation, what’s being proposed?

Jipping: Sure. The main bill was introduced by Senator Sheldon Whitehouse of Rhode Island, and it would do two things. First, it would require the Supreme Court to issue a binding ethics code. The Supreme Court doesn’t have one technically, and that’s for a reason that Sheldon Whitehouse won’t tell you, and that is the Constitution created the Supreme Court, Congress did not. Therefore, Congress does not have authority to tell the Supreme Court that it must issue a code. Instead, the Supreme Court follows the same ethics code that lower court judges do.

They do so voluntarily, but they are committed to that. The same laws that apply to things like financial disclosures and recusal from cases, those laws apply to justices just like they do to lower court judges. It’s fraudulent to suggest that, well, there’s no rules governing Supreme Court ethics. Therefore, Congress has to try to step in and impose one.

The second thing the bill would do, it would allow anybody, any individual to file unlimited complaints about anything that any justice does that bothers people, any violation of any federal law, any allegation that they’re not in compliance with the ethics rules, that they should have recused from a case and didn’t. Any individual can file unlimited complaints. Now, I can just hear the phone calls going out to all the minions saying, “Get ready to file your complaints,” and then every single one of those complaints has to be fully investigated and it has to be investigated by a group of judges.

Now, can you imagine the chaos that would involve it? You remember when Justice Kavanaugh was going through his process and all of the controversy over that. Right after his confirmation, there were 85 judicial complaints filed about things that he had done on the Court of Appeals. There’s a separate process for complaints involving Court of Appeals judges. Just like that, there were 85 complaints. That’s going to be a drop in the bucket compared to the harassment campaign against justices.

Any decision that anyone doesn’t like, anytime a group and their members think that a justice, it’d be great if he was bumped off of this case, well, just go file complaints that he should recuse himself. Absolute chaos. It’s kind of like extortion. If you don’t get your rulings the way we want, this is what’s going to happen to you. This is the kind of intimidation and coercion campaign that we are going to launch and this legislation is what’s going to make it possible.

Guiney: Let me ask you the million-dollar question, in this case, which I feel like I might know the answer to, but is there an ethics crisis in the Supreme Court?

Jipping: No. I mentioned that there are three categories of ethics issues. One is financial disclosures, one is recusal, and one is off the bench activities, things like judges giving speeches and this kind of thing. A, the same laws about financial disclosures and recusal apply to justices, and B, the justices follow the same code of conduct that lower court judges have. The justices have put it in writing multiple times that they’re committed to doing that. If there’s an ethics crisis on the Supreme Court, there’s got to be an ethics crisis in the entire federal judiciary because the justices follow the same rules.

But here’s what the left says is an ethics crisis. The left knows the rules about things like financial disclosures, right? I worked for Senator Orrin Hatch for 15 years. Senators, justices, they have to file a lot of paperwork about gifts that they might get or things along that line. There’s pretty detailed rules about what justices have to disclose. They know that the rest of the country doesn’t know what those rules are. You see a news story, Justice Clarence Thomas went on vacation with a friend of his who’s rich.

Now, that’s all they say. Now, they know what they want people to think. Well, people, “Rich? He’s a rich guy? Well, he must be up to something.” But up until a few months ago, the rule said that what’s called personal hospitality, things like travel, lodging, food that you might get from a friend for a trip, that’s never had to be disclosed. You ask yourself, what’s wrong with someone going on vacation with a friend? Nothing. What’s wrong with someone going on vacation with a rich friend especially when the rules don’t say you have to report anything?

Nothing. They’re accusing Justice Thomas who followed the ethics rules of unethical behavior. That’s how crazy this is. Most recently with Justice Sam Alito, he went on a fishing trip eight years ago with a friend who, wait for it, is rich, and therefore there must be something untoward about that. There must be some kind of problem there, something underhanded. They don’t say what it is, but they just want you to have this gnawing feeling that there’s got to be something wrong.

Now, not only are those situations not ethics problems at all, but the left never says that liberal justices do exactly the same thing. 2018, Justice Ruth Bader Ginsburg took a trip to Israel, paid for lock, stock, and barrel by a billionaire, a billionaire who actually did take cases to the Supreme Court before her, from which she didn’t recuse herself. In fact, in 2018, Justice Ginsburg took more trips paid for by third parties than any other justice on the court. Same year, Justice Stephen Breyer, he took a trip to Europe paid for by J. B. Pritzker, the Democratic governor of Illinois.

Now, I’ve looked, was there any human cry about corruption and unethical behavior and those justices must have been influenced by their rich friends? No, of course, not. There’s just cricket. It’s a false charge against the conservatives and it’s a charge that’s not being leveled against liberal justices who do the same thing. That’s why this whole thing is a sham. It’s a charade to cover or to give fake grounds for then this legislation coming in and saying, “Ah, we’ve created a fake problem. We’ve put up a scarecrow, and now we’re going to knock it down.”

Guiney: This is an intimidation campaign?

Jipping: Yes. The left has not been able to either keep conservative justices off the Supreme Court or to get more liberal justices appointed. At least for a while. That changes and ebbs and flows with who gets elected president and who gets elected to the Senate. But right now there’s a six-three majority for Republican appointees. And not just that, because believe it or not, remember Roe v. Wade, the abortion decision, the split was the same, six to three Republican, back then too. But these justices consistently as a group interpret the Constitution in the traditional for what it means and what it says way.

And like I said, the next best thing then is, the only thing they’ve got because they can’t get their agenda passed through legislatures, is to undermine and smear judges who are not doing what they want. The implications of that though are very, very serious. Because even from the Declaration of Independence, the independence of the judiciary was a critical issue in our becoming a country. The independence of our judiciary is what makes it the best judicial system in the world. That independence from political manipulation, once that’s gone...

The left sees it as an obstacle, not as a principle that we need to support and embrace. Well, once that happens and once the public begins o increasingly think that the Supreme Court just decides cases based on politics, then the rule of law disappears. There have been multiple polls in the last year. More than 60% of Americans do in fact believe that the Supreme Court decides cases based on politics. This campaign is only contributing to that broader breakdown in the public’s trust and confidence in the judicial branch.

The public is less able than ever to distinguish between what do I want the court to do versus what are they supposed to do, this kind of thing. And that’s going to be a long-term damage to our country, not just a conflict over a piece of legislation today.

Guiney: How do you think that conservatives and Americans of goodwill should respond to this situation?

Jipping: Well, we have to defend a very important ingredient for our liberty. The founders of our country designed this system. It didn’t just come together randomly. The role that the judiciary plays staying in their lane by interpreting the law for what it means, not for what they want it to mean, that’s critical to the whole system working the way it’s supposed to. It’s not hard to understand that whether it’s a recipe that my mom’s using or... Well, I’m not very good at following instructions, putting furniture together, but the instructions that come with something, you got to do it the way it’s designed.

Otherwise, it’s not going to work. If we believe that our liberty is important, that doesn’t happen just by chance. It happens by design. I would say you got to learn more about how our system of government is supposed to work. You ought to read the Constitution. It’s one of the shortest in the world. And if you’re really ambitious, every time the Supreme Court issues a decision, they put an opinion on their website explaining that decision. Go read it.

I guess the people who put those out know that most people wouldn’t want to read the whole thing, so they have a nice summary, so just read the summary. But take the Supreme Court for what it is saying, not what a headline says, not what some left-wing group is screaming about, but go read it for yourself. The point is our judiciary is critical to our liberty, but only if the judiciary is doing what it’s supposed to do. The left today sees what the judiciary is supposed to do as the enemy, as an obstacle, and we need to re-embrace it or we’re going to lose our liberty.

Guiney: Thanks to Tom Jipping for sharing his legal expertise on this show, and thank you to all of you for listening to Heritage Explains. Check out our show notes for more work by Tom Jipping and our friends at the Meese Center here at Heritage. You can also find him on Twitter @TomJipping. If you’re interested in learning more about the Supreme Court and what’s happening there, you can check out our podcast, SCOTUS 101, wherever you get your podcasts. If you have any thoughts or feedback for us, send it our way at [email protected].

Coming up next week, when taxes come out of your paycheck, where does that money go and how does the government figure out how to spend it? We sit down with Richard Stern, Director of the Grover M. Hermann Center for the Federal Budget here at The Heritage Foundation to find out. It’s a great show. Hope to see you there. Take care.

Heritage Explains is brought to you by more than half a million members of The Heritage Foundation. It’s written and produced by Mark GuineyLauren Evans, and John Popp.