Reports surfaced last week that the nine justices of the Supreme Court have not been able to agree on a code of ethics for their institution. The Supreme Court is the only court in the nation that operates without a code of ethics, but in 2019 Justice Elena Kagan appeared before Congress and assured representatives that one was in the works. Four years and one Supreme-spouse-supported coup attempt later, the justices still appear unable to agree on the basic ethical standards to which they should be held accountable.
That we are even waiting on the Supreme Court to invent its own ethics rules is an obvious failure for our country. One does not ask the dog to fashion its own leash, or ask the heads of the “five families” to write the laws against racketeering. The Supreme Court’s refusal to self-police is just more evidence that self-policing is an oxymoron that is incompatible with good government. Congress must step in and impose ethics rules on the Supreme Court, as it has for every other federal court, or there will be no rules at all.
In a nation of laws, there is no good reason to allow nine people who hold veto power over the rest of government to operate without basic ethical strictures, or to allow such people to set their own parameters for moral conduct. But whenever the Supreme Court finds itself bereft of good arguments for why it should maintain its antidemocratic privileges, Harvard Law professor and Bloomberg opinion columnist Noah Feldman pops up to rail against reforming the court or exposing it to the will of the American people, as if we lived in a normal functioning democracy.
In the past, Feldman has spent his column inches laundering the reputations of Amy Coney Barrett and alleged attempted rapist Brett Kavanaugh, or defending John Roberts’s wife. Now, he’s written a piece arguing against ethics reform. The piece is important, because Feldman basically functions as Chief Justice John Roberts’s hype man, even though he disagrees with some of Roberts’s substantive opinions. I believe his arguments against reform are precisely the ones Roberts himself would make if anybody ever forced him to explain himself.
In making his case, Feldman brings forward the two most common arguments against instituting a Supreme Court code of ethics: Congress doesn’t have the authority to impose one, and, even if it did, it wouldn’t help. “[T]he only code of conduct that could ever govern the Supreme Court is one it adopted itself,” he writes. Then he argues that even if Congress could impose an ethics code, it would be unwise to do so: “What would not make sense…would be for a Supreme Court code of conduct to give formal authority to any external body to oversee the justices. Even if such a conferral of authority were constitutional, there would be a meaningful risk that such a body would use its supervisory authority to try to influence the outcome of Supreme Court cases.”
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Let’s dispense with both of his arguments.
The case against Congress’s authority to regulate the Supreme Court stems from the separation of powers embedded in the Constitution. Lower federal courts are created by Congress, so Congress can do things like impose ethics rules on those courts; but the Supreme Court is created by the Constitution. Because they are co-equal branches of government, Congress cannot regulate how the Supreme Court functions or impose rules for how it must govern itself. Feldman makes the standard argument: Congress has the constitutional authority to impeach Supreme Court justices, but can make no other regulations governing their conduct or punishing them for inappropriate behavior.
It’s notable that this separation-of-powers argument tends only to go in one direction. The court regularly invalidates actions by the other branches of government, despite there being not one scrap of text vesting it with the authority to declare acts of Congress “unconstitutional.” Yet it squeals like a stuck pig whenever Congress so much as hints at its authority to regulate the court. Moreover, we know that the separation of powers is not the end of the analysis. Congress, not the court, sets the number of Supreme Court justices; it sets the pay for those justices and their staff; and it provides security for the justices and the court.
Indeed, the Supreme Court is entirely reliant on the other branches of government for both its funding and the enforcement of its rulings. The court would quite literally not have a pen to write its fancy rulings with, or an armed police state to enforce its revocation of human rights if necessary, without Congress and the executive branch.
The inherent reliance of the court on the other branches points the way toward how ethics reform could work. Congress could pass an ethics bill, and the Supreme Court would have to follow it, or else the justices could conduct their precious oral arguments on a park bench on the Washington Mall, which is all the Constitution provides for them. They could abide by the recusal rules as laid down by statute, or the president could simply decline to enforce the ruling on any case that a Supreme Court justice participated in but shouldn’t have. This isn’t hard. The Supreme Court has lawyers and footnotes. The president and Congress have guns and money. The idea that the justices are unaccountable to the elected branches has always been a legal fiction, and no one is bound to accept it. The Supreme Court isn’t ungovernable. It’s just that nobody has tried.
Feldman’s second anti-ethics argument is a bit tougher to deal with, because, as much as I think that having nine unelected wizards rule with impunity over all the land is a bad idea, you will never find a more wretched hive of scum and villainy than Congress. Feldman rightly points out that a code of ethics would inevitably lead to congressional ethics investigations, and these would quickly be viewed as partisan; he further argues that calls for recusals or penalties would likely be dependent on what case was being heard and how the justices could be expected to vote on such cases. Because of this, Feldman concludes that ethics reform will not restore the court’s legitimacy in the eyes of the public.
I don’t disagree with Feldman’s conclusion here, just his premise. I do not believe that restoring the court’s legitimacy should be the goal of ethics reform. The court is illegitimate because Mitch McConnell refused to seat or even meet with the nominee of a Black president, then used strategic retirements and benefited from untimely death to engineer a generation-spanning conservative supermajority on the court. It has lost respect in the eyes of the public because that same conservative majority is engaged in an unpopular, extremist legal project that is attempting to undo the social and civil rights progress of the 20th century. Ethics reform cannot bring back what the conservatives have gleefully thrown away. Feldman’s right about that.
But ethics reform can do other things Feldman forgets are more important than the court’s poll numbers or public standing. We are living in a time when moneyed forces, mainly from the white wing and religious right, enjoy ready access to the justices, and those justices pay the influencers back by appearing at their partisan fundraising dinners—and we have no way to stop them. We are living in a time when the spouse of a Supreme Court justice is suspected of aiding an attempted coup d’état, and we have no way of forcing that justice to recuse himself from cases that may reveal the extent of his wife’s culpability. We are living in a time a when a Supreme Court justice has been credibly accused of attempted rape, yet 83 ethics complaints against that justice had to be thrown away because there was no independent authority available to hold him accountable, absent constitutional impeachment.
I’m not naive. I do not think ethics reform will stop Sam Alito from ruling that women can speak only when given leave by their husbands, or that it will stop Neil Gorsuch from ordering the Environmental Protection Agency to burn its scientific research with fossil fuels before it disbands. But I do think that having some way to force these individuals off a case when their judgment is compromised is just a basic thing our country should be able to do to protect ourselves from these people. A trash can does not prevent food from spoiling; it’s just a common tool people are supposed to use when the stench of the rot becomes overwhelming.
The court’s reluctance to adopt an ethics code is more than enough of a justification for one to be forced on them, much the way a child who screams and cries “I’m not tired” really needs a nap. But if you want some higher purpose to a Supreme Court code of conduct, consider it as I do: a gateway drug to real congressional oversight of the Supreme Court. Congress and the president have ceded so much of their authority to the court (for instance: letting abortion rights exist as court precedent under Roe v. Wade instead of passing legislation codifying the right at any point during the last 50 years) that they now exist as junior branches of our juristocracy, functionally subservient to the rules and whims of nine unelected lawmakers. There is no law or executive order that is allowed to exist without Supreme Court approval, and the primary method Republicans use to oppose laws is no longer winning elections but rushing to conservative judges, and eventually to the Supreme Court, in the hope that they will hand Republicans victories they couldn’t win at the ballot box.
Imposing ethics rules on the Supreme Court—and, more important, doing the kinds of things (like threatening its funding) that are necessary to make the Supreme Court accept the rules foisted on it by Congress—is maybe the first step in rebalancing the distribution of power among the branches of government.
Ethics reform is low-hanging fruit: It’s incredibly popular, and easy to explain. And if you can beat Roberts, Feldman, and the chorus of institutionalists who think the Supreme Court should be accountable to no one but itself when it comes to ethics, you can maybe start to beat them back on real reforms that would actually start to chip away at our country’s rule of nine.
That’s probably why Roberts and his ilk fight so hard against congressional ethics rules. The principle that somebody other than the court should have a say in how the court operates is anathema to them. The first step to defeating these emperors is simply getting people to see that they’re not wearing any clothes.