Supreme Court Ethics: a Political Post

Justice Alito insists that no one can impose an ethics policy on the Supreme Court (certainly not Congress) because the Constitution doesn’t give anyone the power. This is such a self-serving position in the face of rampant corruption and dishonesty, on the Court that it’s worth looking closely at what the Constitution says.

Article III, Section I says: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,.”  (my emphasis.)

This section anticipates the possibility of bad behavior, and the need for Justices to be removed for same. The 18th century was quite familiar with bad judicial behavior, including dishonesty before and after appointment as a judge and corruption–accepting gifts of kind and monetary bribes to make the decisions the giver wanted. Such forms of judicial wrongdoing were also recognized Biblically, and were mentioned in the Declaration of Independence as one reason to revolt from English rule. Clearly the Founders did NOT intend that SCOTUS Justices would serve for life even if they were dishonest and corrupt.

Article III does not, however, specify exactly who can make the decision that a Justice should be removed, and it is to that slender and quaking twig that Justice Alito clings. The Constitution does not lay down specific rules for carrying out all its provisions, and in the other branches the rules of good and bad behavior as a government employee have developed normally, in anticipation of human nature: it is predictable that power of any kind will attract some bad actors, some weak actors, and require firm boundaries with consequences for standard forms of bad behavior:  prior felony convictions, lying, theft, taking bribes, disloyalty to the nation being foremost.

Article III, Section 1’s clear statement that Justices terms of service are limited to “during good behavior” makes it imperative to define for the Court what good and bad behavior is, and to terminate Justices who are guilty of bad behavior. I would use something close to that which applies to all federal employees: lying under oath, failure to report questionable gifts, taking bribes, failing to pay taxes or report all income, acting as an agent for a foreign government are all bad behavior. Federal judges below SCOTUS are subject to additional ethical standards, including the need to recuse themselves if their known actions or opinions could be taken to imply bias in their judgment: this standard should also be applied to SCOTUS judges and–like the lower ones–they should apply to a panel of federal appellate judges to see if that situation exists in a particular case and abide by the recommendation.

In creating a clear statement of what is and is not ethical for Supreme Court Justices, so appointees are fully aware of the demands of the position, I believe it necessary to involve the two other branches, legislative and executive, since SCOTUS’s authority to determine Constitutionality affects both.

Legislatively, the judiciary committees in both houses of Congress need to be instructed on what judicial ethics are, and frame reasonable guidelines for appointment to both federal benches and SCOTUS. This should include a requirement to consult and abide by ABA recommendations of suitability, experience, etc. The Senate in particular should be reminded before hearings on appointments of what these guidelines are, and should be required to examine appointees close enough, especially if complaints have been made, to determine the candidate’s honesty, probity, and ability to recognize and admit their own biases (we all have biases–a human condition.) Senators should be reminded that they are also subject to their own oath of office, in which their duty is to the Constitution.  The Senate must never again refuse to fully consider a judicial appointee (as it did during Obama’s presidency) in order to create a partisan Court and we need legislation to that effect.

The executive influence on judicial ethics should flow through the DOJ, for enforcement. The DOJ can properly be assigned the duty of investigating complaints of dishonesty, corruption, collusion with a foreign power, and judicial misconduct (liaising with a judicial council of appellate federal judges, for instance to determine if recusal needs to be enforced.) DOJ can and should properly be the ones to investigate spousal activities: Ginni Thomas’s involvement in the insurrection planning and the coup planning taints not only Justice Thomas but the entire court: at this point, with their supermajority of party, religion, and race, no one NOT on the MAGA side can trust the Court as a whole to render honest opinions on elections, parties, government itself.

(Posted on Facebook today to this point.  Additions to this post below are not on that FB post.)

The danger of a Supreme Court with NO formal ethical standard has been clear since the Republican Party has acted in concert with Republican presidents to stack the Court unfairly (and dishonestly) with Justices who are all of one type: hard-right conservatives, one of whom is married to an extreme radical political operative and involved in the recent attempt at an insurrection and coup.   Even though the Constitution clearly intended Justices to be removed for bad behavior, the understandable failure of 18th century writers to specify kinds of judicial misconduct very familiar to them is understandable and they undoubtedly thought their omission would be rectifed by Congress and the Executive branch  well before the present.  That it hasn’t been has been our good luck, in one way–presidents offered candidates of known good character who abided by known standards of judicial good behavior without needing a firm guideline.  And it’s been our bad luck because most of us assumed that would continue, that presidents would offer only candidates who told the truth under oath about their intents, who did not take bribes, etc.  Now we know how bad it can be: we have Justices who are NOT committed to the Constitution while claiming to be pro-Constitution, Justices who have lied under oath in their confirmation hearings, Justices who do not keep to their sworn word, Justices who accept expensive emoluments and money itself, and return judgments favorable to the givers of those emoluments and bribes.  We can no longer depend on any Justice’s personal sense of honor.  It is thus imperative that we develop a code of conduct and impose it on the Supreme Court. laying out the reasons for doing so and publicly exposing the dirty linen rather than trying to pretend the Court is above suspicion.   The Court is human; it will always have some nicks and dents on its members but they must not be as big as we see now.   Ideally we will develop a larger Court  and a Court more representative of the population, as this will prevent the kind of super-majority that now is partisan as well.     The lower federal courts probably also contain some dishonest and corrupt judges, but a better Supreme Court and a mechanism for weeding out those who demonstrate bad behavior should in time relieve that problem too.