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I've seen a lot of memes and stories tossed about regarding the Supreme Court lately. Most of it is pretty partisan (YOUR side has unethical judges, but MY side is morally upright and would never do such a thing) and (aside from the partisan comment) there is usually an observation that the Court needs to be brought to heel because there’s no other recourse.
If there is political will to do so, the checks and balances on the court by the other branches of the government are there. Congress could leverage the power of the purse strings over the court and let them know that it's contingent upon a tighter code of ethics or the President and Congress could pass a law about financial disclosure that applies to all federal judges and immediate family members. If Congress deems that a judge is corrupt they can impeach them and remove them from the court (which in this partisan environment would probably never happen unless the Judge was a bi-partisan offender, and even then probably wouldn’t happen unless “my side” would get to replace them).
Now, COULD and WOULD are different issues. Congress could absolutely kneecap the Supreme Court, however I don't think there would be bi-partisan will to do so. The Republicans will complain about the 'unethical' things the liberal judges do and the Democrats will complain about the 'unethical' things the conservative judges do. In fact, like most things, it comes down to partisanship these days.
One of the most often levied complaints isn't about the external money they earn, it's about their not recusing themselves in cases where they might have an interest. If just this was codified and tightened up, it would go a long way to 'fixing' the issue. While there are caps on the external monies that Judges on the Supreme Court can earn ($30K a year), this doesn't apply to book deals or stocks nor what family members can do.
Does the Court need to tighten up the self-imposed standards they operate by*? Absolutely – from my Information Operations days, one saying sticks out – When it comes to perception of something, for many “Perception is reality” (which doesn’t mean it IS true, just that from the individual’s perception it is), but the question is "how tight it enough"? Many of the allegations I've seen tossed around against the Justices are spurious and just raw meat for the supporters/detractors to get outraged about, but many do go to a direct tie to the issue – a primary interest in a case that comes before the court.
28 USC § 455 requires federal judges, including Supreme Court Justices, to recuse themselves from particular cases under specified circumstances, such as when the judge or Justice “has a personal bias or prejudice concerning a party” or “a financial interest in the subject matter in controversy”, but that's the crux of many complaints. Who determines "personal bias or prejudice" or what amounts to a "financial interest"? Right now it's left up to the individual Justices to determine if their personal interest in a case rises to a level they should recuse themselves. While the Code of Conduct for United States Judges created by the Judicial Conference does not specifically apply to the Court, the Justices have indicated that they nonetheless “consult the Code of Conduct” and other authorities “to resolve specific ethical issues.”
But should justices recuse themselves if they have a secondary or tertiary tie (or even further) to a potential conflict or just a primary tie?
Examples of primary ties would be Justices Breyer, Sotomayor and Gorsuch having book deals with Penguin Random House and a copyright infringement suit that had PRH as a defendant is before the court (such an instance happened and only one of the three recused himself) or cases where a Judge previously worked on the case that subsequently came before the court. A secondary tie would be if they had an interest in an entity that furthermore had a stake in one of the parties that came before the court such as having an interest in an person/organization that submits amicus briefs on a case before the court.
Should they recuse themselves if they were associated with a case before they sat on the Supreme Court? Should they recuse themselves if they were appointed by a President and the case involves them? Should there be a bar on interests that's tied to ANY financial interest or only those that rise above a certain level?
When it comes to ethics, I'm reminded of that old joke: A man asks a lady if she would sleep with a stranger if he paid her $10,000. She responded that she might. He then asks her if she would do it for $10 and she angrily asks, "What kind of woman do you think I am!?" to which he answers, "We've already established what type of woman you are. Now we're just haggling over price".
Should it be an issue if your spouse earns millions of dollars working as a lobbyist or if you earn millions of dollars from books deals if a case might intersect with entities where those monies came from but not if it was a couple hundred thousand? Tens of thousands? A few thousand? If the answer to some are ‘yes’, and some are ‘no’, then we’ve established that it’s not strictly an issue of ethics, rather what your determination is on the price of someone’s ethics.
Understand that codes of ethics aren’t some law – they are guidelines. Does the court have ethical guidelines already? All nine of the Justices have said they follow the guidelines in the Judicial Conference’s Code of Conduct. Again, guidelines are voluntarily followed, not some law that they are punished if they don’t adhere to it. Should the Court have a formal code of ethics that they self-impose? Yes, because it will give comfort to those that seem to think you just have a bunch of unethical mavericks unless there is a formal guideline for them to follow.
I oft comment that the Supreme Court is decried as an “Activist Court” if a decision they give doesn’t align with the view of the individual calling it that, but often they “gave the right decision” if it does. That in essence sums up the view of many when it comes to the “ethics of the Supreme Court”. We trust the judgement of the Justices as long they ‘align with my view’. Overall, we trust Judges to make decisions that affect others, however we just don’t trust them to be impartial and ethical if they are “one of those from the other side”.
Should there be a forcing mechanism to force a Judge to recuse themselves if they don't recuse themselves when others think they should? The key complaint (at least to my view of the many comments) seems that there is nothing “above” the Supreme Court that can tell them “No, that was wrong and you need to change it” or “You did something improper and are going to be punished” short of getting a majority of lawmakers involved or from influence of the other members of the Court.
However, I find this as non-issue because unless you change Article III of the Constitution, you’re not going to be able to do so. Yes, the Justices have to follow the laws that are enacted just like anyone else, but the laws still have to be within the confines of the Constitution and establishing such an entity that actually has the power to compel the court would be unconstitutional (which is exactly what I expect the Supreme Court to say).
-------------------------------------
* https://www.judiciary.senate.gov/imo/media/doc/Letter%20to%20Chairman%20Durbin%2004.25.2023.pdf
If there is political will to do so, the checks and balances on the court by the other branches of the government are there. Congress could leverage the power of the purse strings over the court and let them know that it's contingent upon a tighter code of ethics or the President and Congress could pass a law about financial disclosure that applies to all federal judges and immediate family members. If Congress deems that a judge is corrupt they can impeach them and remove them from the court (which in this partisan environment would probably never happen unless the Judge was a bi-partisan offender, and even then probably wouldn’t happen unless “my side” would get to replace them).
Now, COULD and WOULD are different issues. Congress could absolutely kneecap the Supreme Court, however I don't think there would be bi-partisan will to do so. The Republicans will complain about the 'unethical' things the liberal judges do and the Democrats will complain about the 'unethical' things the conservative judges do. In fact, like most things, it comes down to partisanship these days.
One of the most often levied complaints isn't about the external money they earn, it's about their not recusing themselves in cases where they might have an interest. If just this was codified and tightened up, it would go a long way to 'fixing' the issue. While there are caps on the external monies that Judges on the Supreme Court can earn ($30K a year), this doesn't apply to book deals or stocks nor what family members can do.
Does the Court need to tighten up the self-imposed standards they operate by*? Absolutely – from my Information Operations days, one saying sticks out – When it comes to perception of something, for many “Perception is reality” (which doesn’t mean it IS true, just that from the individual’s perception it is), but the question is "how tight it enough"? Many of the allegations I've seen tossed around against the Justices are spurious and just raw meat for the supporters/detractors to get outraged about, but many do go to a direct tie to the issue – a primary interest in a case that comes before the court.
28 USC § 455 requires federal judges, including Supreme Court Justices, to recuse themselves from particular cases under specified circumstances, such as when the judge or Justice “has a personal bias or prejudice concerning a party” or “a financial interest in the subject matter in controversy”, but that's the crux of many complaints. Who determines "personal bias or prejudice" or what amounts to a "financial interest"? Right now it's left up to the individual Justices to determine if their personal interest in a case rises to a level they should recuse themselves. While the Code of Conduct for United States Judges created by the Judicial Conference does not specifically apply to the Court, the Justices have indicated that they nonetheless “consult the Code of Conduct” and other authorities “to resolve specific ethical issues.”
But should justices recuse themselves if they have a secondary or tertiary tie (or even further) to a potential conflict or just a primary tie?
Examples of primary ties would be Justices Breyer, Sotomayor and Gorsuch having book deals with Penguin Random House and a copyright infringement suit that had PRH as a defendant is before the court (such an instance happened and only one of the three recused himself) or cases where a Judge previously worked on the case that subsequently came before the court. A secondary tie would be if they had an interest in an entity that furthermore had a stake in one of the parties that came before the court such as having an interest in an person/organization that submits amicus briefs on a case before the court.
Should they recuse themselves if they were associated with a case before they sat on the Supreme Court? Should they recuse themselves if they were appointed by a President and the case involves them? Should there be a bar on interests that's tied to ANY financial interest or only those that rise above a certain level?
When it comes to ethics, I'm reminded of that old joke: A man asks a lady if she would sleep with a stranger if he paid her $10,000. She responded that she might. He then asks her if she would do it for $10 and she angrily asks, "What kind of woman do you think I am!?" to which he answers, "We've already established what type of woman you are. Now we're just haggling over price".
Should it be an issue if your spouse earns millions of dollars working as a lobbyist or if you earn millions of dollars from books deals if a case might intersect with entities where those monies came from but not if it was a couple hundred thousand? Tens of thousands? A few thousand? If the answer to some are ‘yes’, and some are ‘no’, then we’ve established that it’s not strictly an issue of ethics, rather what your determination is on the price of someone’s ethics.
Understand that codes of ethics aren’t some law – they are guidelines. Does the court have ethical guidelines already? All nine of the Justices have said they follow the guidelines in the Judicial Conference’s Code of Conduct. Again, guidelines are voluntarily followed, not some law that they are punished if they don’t adhere to it. Should the Court have a formal code of ethics that they self-impose? Yes, because it will give comfort to those that seem to think you just have a bunch of unethical mavericks unless there is a formal guideline for them to follow.
I oft comment that the Supreme Court is decried as an “Activist Court” if a decision they give doesn’t align with the view of the individual calling it that, but often they “gave the right decision” if it does. That in essence sums up the view of many when it comes to the “ethics of the Supreme Court”. We trust the judgement of the Justices as long they ‘align with my view’. Overall, we trust Judges to make decisions that affect others, however we just don’t trust them to be impartial and ethical if they are “one of those from the other side”.
Should there be a forcing mechanism to force a Judge to recuse themselves if they don't recuse themselves when others think they should? The key complaint (at least to my view of the many comments) seems that there is nothing “above” the Supreme Court that can tell them “No, that was wrong and you need to change it” or “You did something improper and are going to be punished” short of getting a majority of lawmakers involved or from influence of the other members of the Court.
However, I find this as non-issue because unless you change Article III of the Constitution, you’re not going to be able to do so. Yes, the Justices have to follow the laws that are enacted just like anyone else, but the laws still have to be within the confines of the Constitution and establishing such an entity that actually has the power to compel the court would be unconstitutional (which is exactly what I expect the Supreme Court to say).
-------------------------------------
* https://www.judiciary.senate.gov/imo/media/doc/Letter%20to%20Chairman%20Durbin%2004.25.2023.pdf
Ethics
Supreme Court
Congress
Law
Constitution
Edited >1 y ago
Posted >1 y ago
Responses: 13
11
11
0
I think a law defining Financial Disclosures for all Federal Judges and Family Household members would be a good thing IF total impartiality is applied when enforcing such law.
(11)
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10
10
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Thank you for this post, it really was very informative and non-partisan. Blessings.
(10)
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Personally I might not like a certain decision, there have been a few in recent years, but I trust SCOTUS is making the proper decision, based on the Constitution.
(7)
(0)
CPT Jack Durish
I wish that were true. The original Roe v Wade was based on the Constitutional right to privacy (though such a right exists nowhere in the Constitution - it was inferred)
(1)
(0)
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