Red-teaming the SCOTUS code of conduct
On Monday (November 20), I’m at the Simsbury, CT Public Library at 7PM.
Last April, Propublica’s Joshua Kaplan, Justin Elliott and Alex Mierjeski dropped a bombshell: Supreme Court Justice Clarence Thomas had been showered in high-ticket “gifts” by billionaire ideologue Harlan Crow, who subsequently benefited from Thomas’s rulings in the court:
This was just the beginning: in the coming days and weeks, more and more of Thomas’s corruption came to light, everything from the fact that his mother’s home had been bought by Crow, to the fact that Thomas’s adoptive son went to a fancy private school on Crow’s dime:
The news was explosive and not merely because of the corruption it revealed in the country’s highest court. The credibility of the court itself was at its lowest ebb in living memory, thanks to the two judges who occupied stolen seats — Kavanaugh and Coney Barrett. One of those judges — Kavanaugh — is a credibly accused rapist. Thomas is also a credibly accused sexual abuser:
Then, this illegitimate court went on to deliver a string of upsets to long-settled law, culminating in the Dobbs decision, which triggered state laws that force small children to bear their rapists’ babies:
That was the context for the Thomas bribery scandal, which was swiftly joined by another bribery scandal, involving Samuel Alito’s improper acceptance of valuable gifts from Paul Singer, another billionaire who brought business before the court:
This string of scandals and outrages naturally prompted public curiosity about the Supreme Court’s ethical standards, and that triggered fresh waves of incredulous outrage when we all found out that the Supreme Court doesn’t have any:
When Congress made tentative noises about providing minor checks and balances on the court, the justices erupted in outrage, telling Congress to go fuck itself:
Chief Justice Roberts went on whatever the opposite of a charm-offensive is called (an “offense offensive?”), a media tour whose key message to the American people was “STFU, you’re hurting our feelings”:
To the shock of no one except billionaires and Supreme Court justices inhabiting the splendid isolation from societal norms that is the privilege of life tenure, America didn’t like this. The Supreme Court’s credibility plummeted. A large supermajority of Americans — 79%! — now support age limits for Supreme Court justices:
Support for packing the Supreme Court is at an historic high and gaining ground, now sitting neck-and-neck with opposition at 46% in favor/51% opposed. Among under-30s, there’s a healthy majority (58%) in favor of appointing more SCOTUS justices.
As Roberts’ wounded bleats reveal, SCOTUS is very sensitive to its plummeting legitimacy. After all, the court doesn’t have an army, nor does it have a police force. Supreme Court rulings only matter to the extent that the American people accept them as legitimate and obey them. Transformational presidents like Lincoln and FDR have waged successful wars against the Supreme Court, sidelining its authority and turning it into an unimportant rump institution for years afterward:
Now the Supremes are working their way through the (mythological but convenient) five stages of grief. Having passed through Denial and Anger, they’ve arrived at Bargaining, with the publication of the court’s first “code” “of” “conduct”:
It’s…not good. As Max Moran writes for The American Prospect and The Revolving Door Project, the proposed code amounts to “security theater,” a set of trivially bypassed strictures that would not have prevented any of the scandals to date and will permit far worse in the years to come:
The security framing is a very useful tool for evaluating the Supremes’ proposal. The purpose of a code of conduct isn’t merely to prevent people from accidentally misstepping — it’s to prevent malicious parties from corrupting the judicial process. To evaluate the code, we should red team it: imagine what harms a corrupt judge or a corrupting billionaire would be able to effect while staying within the bounds the code sets.
Seen in that light, the code is wildly defective and absolutely not fit for purpose. Its most glaring defect is found in the nature of its edicts — they are almost all optional. The word “should” appears 53 times in the document, while “must” appears just six times:
Of those six “musts,” two are not pertinent to ethical questions (they pertain to the requirement for a justice to get prior approval before getting paid for teaching gigs).
When the code of conduct was rolled out, the court and its apologists pointed out that it was modeled on the ethical guidelines that bind lower courts. In the wake of the Thomas revelations, these guidelines were a useful benchmark to measure Thomas’s conduct against. The fact that other federal judges would have been severely sanctioned or even fired if they had engaged in the same conduct as Thomas was a powerful argument that Thomas had overstepped the bounds of ethical conduct.
But as Bloomberg Law discovered when they compared the lower courts’ codes to the Supremes’ draft, the Supremes have gone through those lower court codes and systematically cut nearly every mention of “enforce” from their own draft. They also cut the requirement to “take appropriate action” if a violation is reported.
If you are a bad judge or a bad donor, all of this is good news. Nearly everything that it condemns is merely optional, which means that if a judge can be convinced to ignore a rule, they won’t have violated the code. What’s more, even widespread rulebreaking doesn’t trigger an investigation. That’s a very weak security measure indeed.
But it gets worse. The Supremes’ code also omit key definitions found in the codes that bind the lower courts. The most important definition to be cut is for “political organization,” which the lower courts define expansively as both parties and “entit[ies] whose principal purpose is to advocate for or against political candidates or parties.” That definition captures “nonprofits, think tanks, lobbying firms, trade associations, grassroots groups” — the whole panoply of organizations whom federal judges must maintain an arm’s length distance from in order to preserve their objectivity. Federal judges may not lead, speak at or donate to these organizations.
By omitting this definition, the Supremes open the door to involvement with precisely the kinds of PACs, thinktanks and other influence organizations funded by the billionaires who have benefited so handsomely from the judges’ rulings.
What’s more, the Supremes carve out an explicit exemption for speaking to “nonprofits, think tanks, lobbying firms, trade associations, grassroots groups,” and to serving as a director, trustee or officer of “a nonprofit organization devoted to the law, the legal system, or the administration of justice and may assist such an organization in the management and investment of funds.”
As Moran points out, this exemption would cover — among other institutions — the far-right Federalist Society, which satisfies all those criteria. That means a Supreme Court justice could sit on the board and raise funds for the FedSoc without raising any issues with this code — not even one of those squishy “shoulds.” Nothing in this code would stop Clarence Thomas or Thomas Alito from accepting lavish gifts, private jet rides, or luxury tour buses from billionaires with business before the court:
As Moran writes, these definitional vacuums are a well-understood class of weaknesses in ethics codes. Congress gets a lot of mileage out of this ruse — for example, by narrowly defining “lobbying” to exclude things that most people understand that term to mean, Congress engage in improperly close relations with lobbyists while still maintaining that they hardly ever talk to a lobbyist at all:
The same ruse goes for campaign contributions — if you want to accept a lot of campaign contributions that would fall afoul of ethics rules, just narrow the definition of “campaign contribution” until all the money you’re receiving no longer qualifies.
Moran closes by calling on Congress to formulate a real, meaningful code of conduct for the Supremes, one that orders Supreme Court judges not to accept corrupting gifts and to maintain the arm’s length neutrality that the rest of the federal judiciary is required to keep. Rather than this new code of conduct constituting proof that SCOTUS can be its own oversight, its gross deficiencies should put to rest any question about whether the Supremes can be trusted to regulate themselves.
If you’d like an essay-formatted version of this post to read or share, here’s a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog: