From the Left: Judging Ethics in the Supreme Court

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From the Left

By Lance Simmens

Americans’ disenchantment with its leaders and governmental institutions is precariously challenging a nation that has set the bar for democratic governance since its inception two and a half centuries ago. A steady infusion of ethics infractions involving Supreme Court Justice Clarence Thomas and his wife benefits their pocketbooks at the expense of our democracy with no accountability or penalty. “How can this happen?” you ask; well the problem is the nine members of the land’s highest court cannot violate something that does not exist, such as an enforceable Code of Ethics. To some, their robes contain open arms that welcome ethical violations. Pretty good job if you can get it, eh?

According to a recent Gallup poll, Americans’ trust in the Supreme Court and its job approval ratings have significantly dropped in the last two years, reaching historic lows. Only 47 percent of Americans said they had a “great deal” or “fair amount” of trust in the high court. This year marks the lowest trust level among Americans since 1972. Job approval of the Supreme Court also took a hit, as only 40 percent of those polled said they approved of the job done by the court, an 18-percentage point drop from 2020.

Because Congress is so hopelessly divided along partisan lines and seeking legislative remedies, such as a Code of Conduct, is likely to raise legal and constitutional roadblocks that will render its adoption at best unlikely and at worst impossible, it may require Chief Justice John Roberts to do what he can to salvage the reputation of his troubled court. But in the meantime, stories of rampant corruption such as those currently being exposed on a daily basis will continue to erode public confidence in our judicial system and will likely be the legacy left by the Roberts court. A recent NPR/PBS NewsHour/Marist poll found that 62 percent of those polled have little to no confidence in the Supreme Court, prompting Senate Judiciary Committee Chairman
Dick Durbin (D-IL) to opine “The highest court in the land shouldn’t have the lowest ethical standards.”

The Guardian reports that Democrats received some support on their push to legislate a code of conduct from J. Michael Luttig, a former appeals court judge and noted conservative legal thinker who said Congress does have the authority to establish such standards.
He wrote in a letter to the committee: “There should never come the day when the Congress of the United States is obligated to enact laws prescribing the ethical standards applicable to the non-judicial conduct and activities of the supreme court of the United States, even though it indisputably has the power under the constitution to do so, but paradoxically, does not have the power to require the court to prescribe such standards for itself.”

Luttig was joined by progressive scholar Laurence Tribe, who wrote to the committee: “I regard legislation to impose ethical norms in a binding way on the justices as eminently sensible.”

Recently, the American Bar Association adopted Resolution 400, urging all bar associations to pass their own resolutions calling for the Supreme Court to adopt a code of judicial ethics that’s binding on its justices.

“Its high time to set (a code of conduct),” said Stephen Saltzburg, a law professor and former U.S. Justice Department official. “The Supreme Court should have a code of ethics. Exclamation point. The end.”

As a former public servant who served in senior-level politically appointed positions at the federal, state, and local levels of government for nearly four decades, I have personally witnessed steady rot and ruin of sacred democratic institutions due to what can only be described as wholesale bribery. Our democracy is crumbling under the weight of outright extortion. In political circles at all levels of government, money talks.

The institutions of Congress and administrative organizations have been overtaken by monied interests who are welcomed to buy their way into the process of drafting legislation and directing public policy to benefit their narrow interests. This has not been overlooked or ignored by an understandably cynical electorate, indeed it feeds cynicism and encourages lawlessness. Quite simply, people are no longer shocked and say if it is good for them it is good enough for us.

Public confidence in our leaders and institutions continues its downward trajectory and the accompanying distrust only feeds more cynicism. The outrageous abuse of power that is currently enveloping the Supreme Court should leave one disgusted and feeling that rampant corruption benefits everyone but the populace that pays for such disgraceful actions. Integrity, honesty, public service, and the greater good are sacrificed to benefit the few who brazenly manipulate the system to their benefit at the expense of all others. The Supreme Court is becoming an extreme embarrassment, Mr. Roberts; if you do not act, then Congress should! Restore public trust and democratic principles by instituting an enforceable Code of Ethics.