Don’t Be Fooled!

Posted on by under History, Law and justice, Political commentary

Long overdue headlines yesterday:

  • Supreme Court Adopts Ethics Code After Reports of Undisclosed Gifts and Travel (New York Times)
  • Supreme Court, under pressure, issues ethics code specific to justices (The Washington Post)
  • Supreme Court adopts modified ethics code after pressure from Hill Dems (Fox ‘News’)
  • The Supreme Court adopts first-ever code of ethics (NPR)
  • Under fire, US Supreme Court unveils ethics code for justices (Reuters)

About damn time, eh?  But hold on … not so fast there.  Not everything is as it seems.  Let’s hear what Robert Reich has to say about it …

Why the Supreme Court’s new ethics code is neither a code nor about ethics

It’s a pathetic attempt at pacifying the public instead of making justices accountable

Robert Reich

14 November 2023

Yesterday, the Supreme Court announced an ethics code for the justices. But the code is utterly empty. It has no enforcement mechanism and no mechanism for the public to lodge complaints of misconduct.

It’s public relations pablum.

The court effectively admitted this, saying that “the absence of a Code … has led in recent years to the misunderstanding that the justices of this court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.”

Misunderstanding? I’m sorry, but the public understands quite well that the justices regard themselves as free to do whatever they wish, in terms of ethics.

In April, ProPublica documented years of undisclosed luxury travel enjoyed by Justice Clarence Thomas, including private jets and trips aboard a super-yacht courtesy of a Texas real estate magnate and conservative donor, Harlan Crow. Since then, other undisclosed gifts to Thomas have been revealed, all from powerful friends — including a motor coach, private school tuition for a grandnephew the justice was raising, and the justice’s mother’s home in an undisclosed real estate deal.

Thomas has also come under fire for failing to recuse himself from cases related to attacks on the 2020 election results — given that his wife, Virginia Thomas, worked to overturn the 2020 election results in the weeks leading up to the Capitol attack.

Other justices, including Samuel A. Alito Jr. and Neil M. Gorsuch, have also failed to disclose their connections to wealthy people with close ties to the court. Alito did not report a 2008 trip on the private jet of Paul Singer, a hedge fund billionaire who later had cases before the court.

Alito defended his conduct in an op-ed published by the Wall Street Journal, writing that he had “no obligation” to recuse himself from the cases involving Singer’s business, and did not have to report the travel and lodging because the jet constituted a “facility” exempt from reporting requirements. He claimed that the justices “commonly interpreted” hospitality to include accommodations and transportation for social events that did not have to be reported as gifts.

In addition to Thomas and Alito, Gorsuch did not disclose that the head of a major law firm had purchased a Colorado vacation property that he co-owned. Justice Sonia Sotomayor’s staff pushed public entities hosting her to purchase her books; she failed to recuse herself from cases involving her book publisher.

The new code would have had no effect on any of these instances and will have no effect on future ethical lapses.

The new rules don’t require any changes in how the justices conduct themselves.

The new code has no system for the public to lodge complaints or for any outside review of alleged ethical violations.

In the absence of any enforcement process, the document states that Chief Justice John Roberts has directed court staff to do a review of “best practices” based on systems already in place in the lower courts. It didn’t provide a timeline for that review or what action the court might take in response.

What prompted the court to put out this piece of PR pablum now?

Probably the fact that the Senate Judiciary Committee has scheduled a vote on Thursday for issuing subpoenas to Republican megadonor Harlan Crow and conservative legal activist Leonard Leo as part of its ongoing investigation into the Supreme Court.

As Senator Sheldon Whitehouse, chair of the Judiciary Committee subcommittee overseeing the federal courts, explained:

“We need to develop information about how systemic this was. This isn’t just a random gift here and a random gift there. It’s always the same individuals, the same front groups. It’s — there’s a network effect here that we need to understand. … What you have is billionaires with a demonstrated pattern of trying to influence the Supreme Court through a whole variety of groups by giving donations and participating, who are at the same time also giving enormous, massive, secret gifts to justices. Just on its face, that merits investigation. And if it happened in any other court in the United States, it would have been investigated. There would have been fact-finding, and there would have been a result and consequences. It’s only the Supreme Court that is living outside the bounds of the rules.”

The Supreme Court’s new “Code of Ethics” changes nothing. The court is still living outside the bounds of rules.

Ultimately, I blame Chief Justice John Roberts. The court’s chief justice is supposed to maintain public trust and confidence in the court, but Roberts has done everything possible to avoid a Code of Ethics with teeth. This latest pathetic attempt at pacifying the public will do little to reverse the sharp decline in public confidence in the nation’s highest court.

At his nomination hearing in September 2005, I testified against Roberts becoming the next chief justice. I had no confidence in his ability or willingness to put the public interest above the interests of individual justices. Sad to say, I’ve been proven correct.

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25 thoughts on “Don’t Be Fooled!”

  1. You elect dog-cstchers in some states. Yet you appoint SC Justices! I am not suggesting Justices be elected, but neither do I think they should be appointed by Presidents or politicians. Of all people in the States, judges and justices cannot be allowed to be partial. Yet here you are, with Justices working for a political party/ideal. Talk about weaponized! It is time to change your Constitution! If you don’t do it now, you will lose the chance…

    Liked by 2 people

    • Good point. The reason Supreme Court justices are not elected is that the framers of the Constitution believed that having to campaign and run for office would make them more likely to be swayed by partisan politics, so they are appointed to lifetime terms with the intention of keeping them impartial and fair. Until recent years, I think it mostly worked, but now … all bets are off! Unfortunately, amending the Constitution would be a years-long process. Now, the Court can be increased or decreased in number without a constitutional amendment, and many had hoped that President Biden would expand the Court when he first took office, but I think he felt that would set off a furor on the right, which I’m sure it would have, since they now have the ones they need in their pockets.

      Liked by 1 person

      • Afraid of offending the Right. Guns! Voting! Women’s Rights! Racism! Genderism! The Supreme Court!
        The Right needs to be offended! They are offending over hslf of Americsns right now. And Biden is afrsid to offend them!!!
        I’m sorry, Jill, but this us wny I do not like Joe iden as President. He may have a lot of good qualities, but he has no balls! And a Democrat President needs balls. So do the American people.

        Liked by 2 people

        • No, not afraid of offending the right, but rather trying to keep the lines of communication open in hopes of being able to get things done. Neither party, unless they hold majorities in the House, Senate, and presidency, can accomplish ANYTHING without working across the aisle. This isn’t an autocracy (yet) and Biden doesn’t have the power I think you believe he does. Given the obstacles put in front of him, Biden has accomplished a heck of a lot, and done so quietly, not tooting his horn on television and social media constantly like his predecessor did.

          Liked by 1 person

    • I would be loathe to open up the constitution during such a divisive time as this. ALEC, the “American” Legislative Exchange council already has a plan for a Constitutional Convention running through the states as we write and they have very specific plans for what they want in it and it’s not going to be good, at least for people. Common Cause has been acting on this but for the most part, no one seems to know about it. I haven seen or heard anything on the news about it. That can’t be good.

      Liked by 3 people

      • ‘ALEC’ is a corporate lobbying group that works with politicians (mainly of the Republican variety) to attempt to pass bills that benefit corporate interests to the detriment of We the People. But yes, I agree that now is not the time to alter the Constitution. It might be opening a can of worms that turn into lethal snakes once given oxygen.

        Liked by 1 person

  3. I am puzzled—and distressed—that Kagan, Sotomayor, and Jackson signed on to this window-dressing non-code. They know better. (Kagan famously declined a gift of bagels (!) from people she knew.) As Elie Mystal of The Nation said, there are a few “shoulds” in the announcement, but there should be a lot of “shalls.”

    However, I’ve heard other court critics say it’s an opening wedge in which the Chief Justice acknowledged his awareness that he has a problem.

    Liked by 4 people

    • I hadn’t thought about it, but yes, that is a good question. Perhaps they thought that by not agreeing, it would seem as if they were aiding and abetting the corruption?

      I hope that it is an “opening wedge” and not the final dart. I do think the Court will be watched much more closely from this point on.

      Liked by 1 person

    • Up until now, obviously nobody … except ProPublica! But I suspect from now on they will find it much more difficult to accept bribes without being caught, for I think they will be watched much more closely in the future.

      Liked by 2 people

  5. You cannot have “Checks and Balances” in our three EQUAL Branches of government if one branch has much more power & authority than the other two. It is supposed to be 33% – 33% – 33% and the other two branches MUST oversee the other one or two in harmony. THIS is how our Founding Fathers, especially James Madison, designed SCOTUS along with Congress and the Executive Branch.

    Since Ronald Reagan’s administration we have all seen the deterioration of this perfect balance, particularly when it comes to the wishes of ONE party—the Elephants. Period.

    Liked by 4 people

  6. Jill, it took an effort to destroy the confidence in the veracity of the Supreme Court. Thomas was put on after not hearing from a second witness waiting to testify on sexual misconduct of some sort. Then Senator McConnell changed the rules requiring only a majority vote rather than 60 votes. That allowed more extreme folks to get through rather than more moderate judges.

    Taking personal gifts is an obvious attempt to bribe judges, calling it exactly what it is. It is not surprising that Thomas is at the center of this.

    It surprises and saddens me that this mistrust is not acted on with more conviction. Keith

    Liked by 6 people

    • Clarence Thomas should never have been confirmed in the first place, but he isn’t the only problem. I suspect Alito is almost as bad. The sheer arrogance of the justices is mind-boggling. They truly seem to think they are above the law, that they are some sort of gods. The only good thing I can think of to come of all this is that I suspect all justices will be watched much more closely from now on.

      Liked by 2 people

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