Despite extreme efforts by Chief Justice John Roberts,
the discussions that shot down meaningful ethics rules for the Supreme
Court have leaked.
Unsurprisingly, it was 3 conservative justices, Gorsuch, Thomas, and Alito,
who objected to any ethics rules at all:
As the summer of 2023 ended, the justices of the U.S. Supreme Court began
trading even-more-confidential-than-usual memos, avoiding their standard
email list and instead passing paper documents in envelopes to each
chambers. Faced with ethics controversies and a
plunge
in public trust, they were debating rules for their own conduct, according
to people familiar with the process.
Weeks later, as a united
front, they announced the results: the court’s first-ever
ethics code. “It’s remarkable that we were able to agree unanimously,” Justice Neil M.
Gorsuch said in a television
interview
this year.
But a New York Times examination found that behind the
scenes, the court had divided over whether the justices’ new rules could —
or should — ever be enforced.
Justice Gorsuch was especially
vocal in opposing any enforcement mechanism beyond voluntary compliance,
arguing that additional measures could undermine the court. The justices’
strength was their independence, he said, and he vowed to have no part in
diminishing it.
In the private exchanges, Justice Clarence
Thomas, whose decision not to disclose decades of gifts and luxury vacations
from wealthy benefactors had
sparked
the ethics controversy, and Justice Samuel A. Alito Jr. wrote off the
court’s critics as politically motivated and unappeasable.
No Sam, you, and your fellow justice Clarence, are corrupt sons of
bitches.
One of your fellow justices is leaking this, because they know corruption when
you see it.
………
To piece together the previously undisclosed debate, The Times
interviewed people from inside and outside the court, including liberals
and conservatives, who spoke on the condition of anonymity to discuss the
proceedings and the justices’ thinking. This article also draws upon
public statements by the justices, who declined to comment.
I'm calling bullsh%$ on this paragraph. If they were passing memos
around in sealed envelopes on paper, the only way that anyone got this, and
then got this to the New York Times is for one of the justices to
either leak it themselves, or to make this available to staff who they knew
who would leak to the press.
I understand why this paragraph is there, the Times is trying to sow
confusion as to the source, but this story had to come from a Justice.
………
The discussions were treated with extra secrecy because they
were so sensitive, according to people from the court. Instead of the usual
legal issues, the justices were contending with controversy about finances
and gifts from friends, and some of the ground rules of their own
institution.
For years, Chief Justice John G. Roberts Jr. had
resisted efforts to hold the court to the same
ethics rules
that bind all other federal judges. In addition to the longstanding code,
those judges can rely on a committee that dispenses advice. Any ethics
complaints that arise are routed to chief circuit judges, who can convene
other judges to investigate, and if necessary, take actions that range from
discreet warning to censure.
All 50 states have avenues for
examining complaints about members of their highest courts. On Monday,
Senator Sheldon Whitehouse, a Democrat from Rhode Island, released a
report
detailing how state supreme court members are subject to ethics
oversight.
The Supreme Court cannot enforce its own ethics. I don't mean
shouldn't, I mean that they
cannot.
Ethics enforcement without an empowered and independent watchdog is not
possible. (Quis custodiet ipsos custodes?)
The Constitution gives Congress explicit authority to regulate the courts, including the Supreme Court.
Congress should set up an independent watchdog for the entire federal court system, including SCOTUS.
