Nov.15

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Supreme Court Decides to Be Ethical

Hold onto your hat, MAGA or otherwise. The Supreme Court has adopted a code of ethics. The heat from all the scandals apparently became too much and Chief Justice John Roberts managed to badger the other eight justices into accepting the code. It is written in turgid legalese with five canons (sections). Roughly summarized, they cover the following areas.

1. A justice should uphold the integrity and independence of the judiciary.
2. A justice should avoid impropriety and the appearance of impropriety in all activities.
3. A Justice should perform the duties of office fairly, impartially, and diligently.
4. A justice may engage in extrajudicial activities that are consistent with the obligations of the judicial office.
5. A justice should refrain from political activity.

All well and good and there is some detail there, but there are also plenty of loopholes. First, the code is largely a repackaging of various previous statements the court has made. It doesn't really break new ground, like saying a justice can't accept expensive presents from people who have an interest, directly or indirectly, in Court decisions. Second, Sen. Sheldon Whitehouse (D-RI) and others note that there is no enforcement mechanism. On the other hand, many Republicans don't see the need for a code at all. Third, nothing is mentioned about a justice's spouse who engages in highly partisan activities. Probably they had to leave that out to get the vote of Ginni Thomas. Fourth, it bans leaks but allows members to make public statements. What's the difference? Fifth, this seems like a compromise between the position of Elena Kagan (we need a tough code of ethics) and Samuel Alito (we don't need any code of ethics). Now they have one but it doesn't really say much and can't be enforced.

The core of the code has a tone of defiance and defensiveness, beginning with a reference to nine misunderstood justices. After all, justices are entitled to have friends, just like everyone else. Even rich ones. The code also emphasizes the heavy workload the justices have, making it hard to find time to worry about ethics in addition.

Why did it take so long and why is it so mushy? Roberts gave the answer earlier this year: It was hard enough to get even a majority in favor of a code, let alone unanimity. This was the best he could do. If he had added a provision: "Don't take gifts worth more than $500 from anyone," he wouldn't have gotten nine votes. Small birthday presents are fine; quarter-million-dollar vehicles, fancy fishing trips in Alaska, and luxury yacht trips all over the world are not. This document is a start, but it won't be the last word. (V)