From the Right: Judging Ethics in the Supreme Court


From the Right

By Don Schmitz

The Supreme Court of the United States (SCOTUS) justices must serve ethically, and, in fact, the Constitution states that justices “shall hold their Offices during good Behaviour.” The Constitution specifies that justices can be removed from the court if impeached by the House of Representatives, and then convicted by the Senate, exactly like a president. In our history, only one justice, Samuel Chase, was impeached by the House in 1805, but was acquitted by the Senate. Article I references “Treason, Bribery, or other high Crimes and Misdemeanors” for removal, for both presidents and judges.

The “Good Behaviour” standard for SCOTUS is broader, but most Constitutional scholars believe the treason and bribery language sets the bar high for removing a justice. Politicians chafe over the power and immunity that justices enjoy, particularly when they rule against their passionately held political beliefs. In 1970, Republican House minority leader Gerald Ford at the urging of President Nixon sought impeachment of far-left justice William O. Douglas. A special judiciary subcommittee conducted a six-month investigation into conflict-of-interest allegations as Douglas sold an article to a magazine but failed to recuse himself when a libel case against the magazine reached SCOTUS. Douglas was also the only paid director of the Parvin Foundation, which had possible connections to organized crime. He was also charged with “leftist militants” associations, and that his book “Points of Rebellion” essentially “fanned the fires of unrest, rebellion, and revolution.”

Strong accusations, but the committee had a Democrat majority, issued no subpoenas, and had no public hearings, so the effort died. Future president Ford had stated “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” Technically correct, but illustrative of the fact that impeachment actions can devolve into nothing more than crass political maneuvering.

Today, accusations are being leveled against Justice Clarence Thomas that he accepted vacations from his friend Harlan Crow, who is a donor to Republican causes, but he failed to report it in his financial disclosure reports. He will not be impeached, however.

Precedent illustrates that political calculus controls these outcomes, and even if the Democrats should take control of the House in 2024 and were to vote to impeach, there will never be the required 67 votes in the Senate to remove him. Impeachment proceedings seem to have become a political weapon in our country, and an effective one, but only against people that run for election. SCOTUS justices have a lifetime appointment.

Doomed impeachment proceedings may score political points for the parties, but they can sully our institutions and accelerate the increasingly jaundiced opinion Americans have of government. However, clear and strong ethical standards of “Good Behaviour” serves to strengthen the court, and our belief in its decisions and critical role it serves as the third branch of government. Senator Sheldon Whitehouse, chairman of the Judiciary Subcommittee, is reintroducing the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act.

Coming to some consensus on appropriate ethics standards would be positive, but the committee seeks to “require” SCOTUS to adopt certain rules, while Whitehouse post statements including “the extremist majority on the Supreme Court has turned the Court into a corrupt, partisan body that is eroding Americans’ faith in our judiciary and our democracy.” Senator, condescending hubris is not an effective means to work with a separate branch of government constitutionally designed to be immune to political meddling. Worse, SCERT would establish a statutory ethics officer for processing complaints against justices for violating ethics rules. Currently the Chief justice consults advisory published opinions by a Judicial Conference Committee when reviewing ethical matters.

Congress is contemplating passing a law expanding legal oversite of SCOTUS beyond its current power to remove justices for treason, bribery, or high crimes, a clear extra constitutional overreach. Said law would be subject ultimately to SCOTUS review, with predictable failure likely. Having clear ethical rules is a laudable goal, but Congress should work with SCOTUS to craft those rules, which should be enforced internally by SCOTUS.

Impeachment rhetoric is usually rooted in partisan politics. Republicans made threats against Justice Sonia Sotomayor because she dissented when the court extended the Heller case to state and local governments, even though she stated during confirmation it was settled law. Similarly, Democrats threatened impeachment against justices when they overturned Roe v Wade based upon their testimony during confirmation. It is logical that SCOTUS justices should abide by the Code of Conduct for U.S. judges, which limits honorariums, political activity, and gifts. However, that should be an internal reform that SCOTUS implements. Moreover, it is illogical, and an overt power grab, to subject SCOTUS to the regulation and increasingly politically weaponized Department of Justice, or the erratic political swings of Congress and the Presidency.