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Supreme Court Releases Ethics Statement to Combat Media Smears

Joshua Arnold-Commentary : Nov 15, 2023
The Washington Stand

"For the most part these rules and principles are not new: The Court has long had the equivalent of common law ethics rules, that is, a body of rules derived from a variety of sources, including statutory provisions, the code that applies to other members of the federal judiciary, ethics advisory opinions issued by the Judicial Conference Committee on Codes of Conduct, and historic practice." -Statement by the US Supreme Court

[] All nine Supreme Court justices signed a Code of Conduct included in a 15-page statement the court released Monday. The statement responds to a well-funded, coordinated left-wing smear campaign that has aimed to discredit the court—or at least its most conservative members—by manufacturing apparent corruption scandals. The court's critics remain unmollified. (Image: Pixabay)

According to the Code of Conduct, divided into five canons, justices "should respect and comply with the law." They "should not allow family, social, political, financial, or other relationships to influence official conduct or judgment." They "should not be swayed by partisan interests, public clamor, or fear of criticism." These are a sample of pages of requirements placed upon a judge's behavior.

The Code of Conduct also clarified behavior that is permissible for justices. Justices "may engage in extrajudicial activities ... and may speak, write, lecture, and teach on both law-related and non-legal subjects." They "may hold and manage investments, including real estate" but "should refrain from financial and business dealings that exploit the judicial position." They "may accept reasonable compensation and reimbursement of expenses for permitted activities."

The Code discussed at length the rules concerning a justice's recusal. "A Justice is presumed impartial and has an obligation to sit unless disqualified," it states. Justices should recuse themselves in cases with which they have personal knowledge or involvement, or in which they or their close relatives have a direct financial interest. However, it goes on to clarify, "The rule of necessity may override the rule of disqualification." This well-established principle of jurisprudence recognizes that, whereas a judge's recusal in a lower court merely assigns the case to another judge, there are no substitutes for Supreme Court justices, so they have a duty to preside in a case unless a very good reason prevents them from doing so.

In a short statement preceding the Code of Conduct, the court clarified that the Code did not impose many new restrictions on the justices' actions, but "largely represents a codification of principles that we have long regarded as governing our conduct." An appended commentary said the Code "is substantially derived from the Code of Conduct for US Judges, but adapted to the unique institutional setting of the Supreme Court." However, it said "the absence of a code" had been misunderstood.

Beginning shortly after the Dobbs decision, the Soros-funded ProPublica and other left-wing media outfits have taken a fine-tooth comb to the financial transactions of the court's conservative-leaning justices, especially Justice Clarence Thomas. They delved back years and decades, searching for evidence to advance a pre-determined narrative of corruption. The best they could come up with is that Thomas took some trips paid for by a friend who has never had a case come before the Supreme Court.

With a lot of sneer-and-smear and few facts, these media outlets manufactured corruption rumors that left-wing groups inflated into a movement-wide pressure campaign to force him to resign. National Review's Dan McLaughlin wrote that the campaign "has had an effect because members of the public who don't follow the Court closely just keep hearing that the justices not only are acting unethically but are also not subject to any rules."

Of course, these left-wing groups are far less concerned about Thomas'  ethical "failings" than about his strict constitutionalism and strident opinions. Indeed, it's not at all clear he ever violated the court's ethics rules or did anything less appropriate than other justices. But he did dare to be a conservative in a prominent public office, siding against a right to abortion, rewriting gender identity into civil rights legislation, Biden's student loan bailout, and other executive-branch power grabs. (Screengrab image)

"The well-financed campaign to paint the conservative justices (and only them) as unethical is only one prong of a wider effort to intimidate and/or discredit the Court and its justices by physical protest, threats of violence, smears, and proposals to restructure the Court," said McLaughlin.

The statement complained of a "misunderstanding" that justices "regard themselves as unrestricted by any ethics rules" and said they issued the Code "to dispel this misunderstanding."

In reporting on the Code, mainstream media outlets instantly vied with one another to misunderstand it. "The Supreme Court on Monday adopted its first code of ethics," began The Associated Press. USA Today went further, putting the spin in the title, "Amid blowback over Clarence Thomas travel, Supreme Court says it will adopt first-ever code of conduct," and subtitle, "It is the first time in its 234-year history the Supreme Court will honor a code of conduct."

Both articles then proceeded to quote from the opening statement, from the very same paragraph in which the Supreme Court had said:

"For the most part these rules and principles are not new: The Court has long had the equivalent of common law ethics rules, that is, a body of rules derived from a variety of sources, including statutory provisions, the code that applies to other members of the federal judiciary, ethics advisory opinions issued by the Judicial Conference Committee on Codes of Conduct, and historic practice."

If their reporting were a reading comprehension assignment, they wouldn't be happy with the grade.

The AP undercut their own narrative by noting that the Code "does not appear to impose any significant new requirements," which means Supreme Court justices already abided by a set of ethical requirements.

Saying the court's Code of Conduct "fails to meet the moment would be an understatement," USA Today cited left-wing court critic Caroline Ciccone. "After a year of countless ethics issues and mounting pressure to fix its corruption crisis, the court released a set of written—and apparently unenforceable—guidelines." This grossly mischaracterizes the situation. The Supreme Court did not experience "a year of countless ethics issues" or a "corruption crisis" but rather a year of left-wing attempts to create the perception of ethical failings, mostly based on years-old incidents.

As to the enforceability of the guidelines, USA Today had already admitted, "enforcing a code of conduct on the Supreme Court would be especially tricky, given that no other tribunal currently exists that could overrule a decision made by a justice or the court itself." In extreme cases of misconduct, justices could face impeachment or criminal charges, but otherwise the Supreme Court is as self-governing over its members as the US House of Representatives or the US Senate. "At the end of the day, an independent judiciary is supposed to be independent," said McLaughlin. What really irritates left-wing radicals is not the Code's alleged unenforceability, but the lack of a mechanism they can abuse to reshape the Supreme Court by extra-constitutional means.

Senate Democrats have also joined in the Left's pressure campaign. After failing to make Chief Justice John Roberts testify earlier this year, they plan to subpoena several conservative private individuals who are featured in the left-wing smear pieces; the vote on the subpoenas is scheduled for Thursday. According to the AP, Senate Judiciary Committee Chairman Dick Durbin (D-IL) said justices could avoid criticism and a congressional attempt to impose an ethics code on the court—which would trigger a constitutional crisis—by issuing their own Code of Conduct. They did so, but Durbin wasn't satisfied.

Left-wing critics of the Supreme Court will remain unsatisfied with its ethics statement because their critique was truly about policy differences, not ethics. They simply dislike Dobbs and other constitutional decisions the court has recently issued. But that policy dispute does not grant them a right to restructure the Supreme Court any more than it gives them a right to ignore the court's rulings. Our constitutional system is built upon three independent branches with mutual checks and balances between them, and it would be short-sighted to topple that system for a near-term objective only.

If the Left sincerely believes the Supreme Court is issuing bad decisions, then they should do what pro-lifers and the conservative textualism movement did decades ago. They should persuade Americans that there is a better way to interpret the constitution, persuade candidates to appoint judges and justices who will apply that interpretation, and convince voters to elect those candidates to office. It took a conservative movement 50 years to see the end of Roe v. Wade; there's nothing special about leftists that makes them deserve a special shortcut. Subscribe for free to Breaking Christian News here

Joshua Arnold is a senior writer at The Washington Stand.