Supreme PR

Power corrupts and absolute power corrupts absolutely.” – Lord Acton
Or does it?” – The Lonely Realist

On November 13th, responding to public pressure, the #SupremeCourt announced that its nine Justices had approved a code of conduct for their own behavior substantially similar to the one adopted by the Congressionally-created Judicial Conference for the roughly 2000 other federal court judges …, though with one significant difference. In doing so, the Supreme Court evidenced its public relations skills. The Judicial Conduct and Disability Act (JCDA) passed by #Congress in 1980 subjects other federal court judges to investigations and sanctions for failure to abide by a comprehensive Judicial Code of Conduct. The grounds for judicial discipline under the #Code are facts alleging “conduct prejudicial to the effective and expeditious administration of the business of the courts…, the determination of which is the province of [a panel of Circuit Court judges].” That will not be the disciplinary procedure for the Supremes. No independent panel for them. They will be the sole arbiters of their own alleged violations. Any purported misconduct by a Supreme Court Justice will be judged solely by the other Supreme Court Justices who will impartially impose appropriate sanctions …, and thereafter continue working closely with their disgraced colleague. Of course they will!

Although Congress for years has been threatening to enact legislation that imposes a code of conduct on Supreme Court Justices, it has not done so because of the uncertainty over whether the Constitution grants Congress such authority. The Roberts’ Court has explicitly rejected any such Congressional power, staking out a position that would lead to a Constitutional crisis were Congress to enact a code of conduct purportedly applicable to the Supremes. The #ChiefJustice more than 10 years ago stated that the Supremes are their own judge and jury – any #CodeofConduct, he said, “by its express terms, applies only to lower federal court judges…. Article III of the constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress [enacted the JCDA and] instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.” The only authority Congress has over the Supremes in Justice Roberts’ view is what is explicitly stated in #ArticleIII: Congress can remove Supreme Court Justices for “treason, bribery, or other high crimes and misdemeanors.” As Justice Alito affirmed, “Congress did not create the Supreme Court…. No provision in the Constitution gives them the authority to regulate the Supreme Court – period.”

The recent furor over lapses in Supreme Court ethics has centered on Justice #Thomas who, among other things, “took at least 38 [free] vacations, 26 private jet flights, eight flights by helicopter, a dozen VIP passes to sporting events, as well as stays at luxury resorts in Florida and Jamaica” – all of which he failed to disclose – and also did not declare decades of luxury travel paid for by a politically conservative donor who, in addition, purchased Justice Thomas’ mother’s home and paid tuition for his grandnephew. Leaving aside whether Justice Thomas was required to make such disclosures, the magnitude of the largesse he received and their sources raise the question of why a sitting Supreme Court Justice would not have made voluntary disclosures in order to avoid “even the appearance of impropriety.” Justice Thomas did not do so and has rightly been condemned criticized for that failure. He further determined not to recuse himself from cases challenging the 2020 election outcome despite his wife’s having actively lobbied President Trump’s chief of staff to overturn the result. His actions evidence a belief that he and his fellow Justices are above the law, that he has the absolute power to decide for himself what is and what is not acceptable conduct. Some in the media have characterized his failures – and they were failures – as “brazenly unethical,” and they were. They and failures-to-disclose by other Justices together with the perception that the Court has failed to sanction Justice Thomas’ actions have shaken Americans’ faith in both the Rule of Law and America’s judicial system. Nevertheless, none of these misconducts illegalities oversights ethical failures individually or together reaches the level of “treason, bribery, or other high crimes and misdemeanors” that would provide an appropriate basis for impeachment, and no other remedies are feasible for a Supreme Court Justice who is one of only 9 members of the highest court in the land. Moreover, even were impeachment a possibility for such “brazenly unethical” behavior, removal of a sitting Supreme Court Justice for #ethics violations would do severe damage to American democracy. Further, “brazenly unethical” conduct by a Supreme Court Justice that falls short of being a “high crime or misdemeanor” does not justify punitive action by Congress. However, such egregious ethical actions necessarily require the Supreme Court to better police itself…, and that’s arguably what the Supreme Court has attempted to say it will do.

The Supremes recent adoption of a Supremely-specific code of conduct that is “substantially derived” from the Judicial Code of Conduct was a bona fide effort to improve its public image – in other words, an example of Supreme PR! As the most powerful branch of 21st Century American government, the Supreme Court indeed has absolute Constitutional power to self-regulate [ED NOTE: it similarly has the absolute power to adopt controversial legal doctrines including, for example, by affirming the Fifth Circuit’s “#nondelegation” conclusion in SEC v. Jarkesy, which would result in the #deregulation of the entire federal government, a subject previously discussed by TLR here]. Only time will tell whether that absolute power will be exercised with appropriate restraint or will corrupt – some have argued that the absence of strict ethical and enforcement standards already has corrupted. President Trump’s selection of Justices Gorsuch, Kavanaugh, and Coney Barrett to join fellow-thinkers Thomas, Alito and Roberts has created a potent majority that has reshaped the Court, increasing its power and reinforcing its ability to self-regulate. Whatever the leanings of future Supreme Court appointees, the Supremes will continue to be above-the-law in ways that otherwise are inapplicable to the rest of America’s government.

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