As the Roe decision ripples through America, further eroding the idea that we live by rule of law and not by brute politics, we must also ask a more fundamental question: the Supreme Court of Can the United States do anything to pull itself back from the brink of a complete crisis? -by sliding towards pure partisanship? Already shaken by the leak of the draft Roe opinion in early spring, public confidence in the tribunal, with the publication of the final decision, has fallen to historic lows, undermining the legitimacy of a central institutional pillar of American democracy – now itself under siege.
Already reeling from the leak of the draft Roe opinion in the early spring, public confidence in the tribunal, with the publication of the final decision, plummeted to historic lows.
That this siege was led by lawyers sworn to uphold the rule of law – John Eastman, Rudy Giuliani, Sidney Powell and Cleta Mitchell, among others – is a stunning development. Many of these lawyers are currently being investigated by law societies, which hold the power to both grant professional licenses and revoke them in cases where it finds the basic rules of professional conduct for lawyers – which would prohibit making false statements, assisting in the crime or fraud and failure to exercise independent judgment – have been violated. Based on publicly known facts, the case for sanctioning Trump’s lawyers is strong.
But what about Supreme Court justices? Remarkably, judges are not bound by these same rules of legal ethics. In fact, they are not bound by any ethical rules – a fact that puts them at odds not only with practicing attorneys, but with virtually every other judge in the United States, including other federal judges, who are governed by the Code of Conduct for United States Judges.
Yet this code exempts Supreme Court justices from its coverage. The reasoning is that lower federal court judges are established by Congress. In contrast, justices of the United States Supreme Court derive their authority directly from Article III of the Constitution, which provides that they may sit as long as they show “good conduct” and cannot be revoked only by impeachment.
This legitimate constitutional argument nevertheless raises a much more practical question: why don’t judges simply agree among themselves to formally adhere to the code? The answer the judges give for not having done so is that they follow it voluntarily out of conscience, and we should trust them to do so. As Chief Justice John Roberts said in his 2011 Judicial Report: “I have complete confidence in the ability of my colleagues to determine when recusal is warranted. »
That trust, however, is no longer well placed (if it ever was). In recent months, there has been an outpouring of evidence, thanks in large part to the patriotic work of the January 6 committee, of conduct that allegedly violates the spirit, and even the letter, of the code the judges claim to follow. This further underscores why such a code should now be an urgent national priority.
Many (but not all) of the court’s recent issues center on Ginni Thomas, the wife of Judge Clarence Thomas. Ahead of the 2020 election, Ginni Thomas gained unusual access to the Trump White House, where she advanced extreme religious and anti-LGBTQ policies while working with activists seeking to unseat Roe. (And now we learn that anti-Roe activists have engaged in a coordinated effort to have wine and dinner judges, including Thomas.)
After Trump lawyers launched outlandish ‘Kraken’ lawsuits claiming Antifa conspiracies and rigged voting systems, Ginni Thomas texted Mark Meadows, Trump’s chief of staff: ‘Free the Kraken and save us of the left that is bringing America down.” She urged Meadows to continue the bogus trials, which he was in a position to influence. Weeks later, former Thomas lawyer John Eastman urged a Trump campaign attorney to appeal a Wisconsin voter fraud case to the Supreme Court, where Eastman claimed “there was a fierce ongoing struggle” over whether to intervene.
As the election cases crashed through the courts, another strategy emerged, led by CNP Action, the group on whose board Ginni Thomas sat. CNP Action, the political advocacy arm of the Council for National Policy, has launched a campaign to pressure lawmakers in five battleground states who voted for Biden to name a fake list of pro-Trump voters. Eastman’s infamous legal memo to the president argued that Vice President Mike Pence could refuse to certify legitimate Biden voters on Jan. 6 based on the fake rolls.
To pressure Pence into carrying out this plan, Meadows coordinated with leaders of various far-right conspiracy groups to plan a January 6 show of force for “Stop the Steal.” Ginni Thomas was involved in mediating between the groups to carry out the rally, which was officially coordinated by Turning Point USA.
The core principles of the federal code of conduct state that judges must protect the “integrity and independence” of the judiciary, “avoid impropriety and the appearance of impropriety” and avoid extrajudicial activities that “harm the impartiality of the judge.
It is very difficult to see how Thomas’ involvement in any case related to his wife’s lobbying or Trump’s efforts to overturn the election would not violate each of these principles. His wife’s outspoken campaigning on issues under Supreme Court scrutiny, not to mention her direct involvement in Democratic sabotage, cast a massive shadow over Thomas’s independence from influence. political and judicial impartiality. His role requires that he keep political influence as far away from his work on the ground as humanly possible. This, in turn, should compel his wife to disengage from active lobbying efforts and, at a minimum, demand that he not publicly associate himself with her causes. And yet, he did it repeatedly.
Moreover, the revelations of the wife of a sitting Supreme Court justice aggressively campaigning to overturn a presidential election deal a terrible blow to the Court’s legitimacy. It is unlikely that Thomas was unaware of his actions. The January 6 committee could still find out how much her husband knew. But this fact-finding mission does not affect the ultimate ethical analysis that even a appearance irregularity should be disqualifying. And if that doesn’t seem inappropriate to a reasonable observer, I don’t know what would.
If that doesn’t seem inappropriate to a reasonable observer, I don’t know what would.
Thomas appears to have already ignored his ethical duty to recuse himself in cases where his wife’s interest would be “substantially affected” by her involvement in the case brought by Trump to prevent the January 6 committee from obtaining records from the White House – records which include his wife. For the moment, nothing prevents him from starting again.
Despite this dangerous threat to judicial independence, there is no consensus on the way forward. The 21st Century Courts Act proposed in the House require the Supreme Court to adopt its own code of conduct.
While some raise constitutional questions about whether Congress could regulate the court, a more practical concern is whether a Supreme Court code of conduct would actually make a practical difference. Judges would remain the ultimate arbiters of their own compliance, and their desire for autonomy would provide little incentive for consistency and rigor in internal police ethics. However, while judges would remain judge and jury of their own conduct, a code of ethics would still make a powerful symbolic statement: no lawyer sits above professional values or can determine what those values are.
A code of ethics would also create greater public accountability. Being able to report violations of an applicable rule would put additional pressure on ethical compliance. At confirmation hearings, senators could get candidates to commit to following the letter of a code once confirmed, as they currently do by asking judges whether they will honor precedent. (Although we know that promises to do so are regularly broken.)
This leads to a second objection to a code: how it could be weaponized by judges to gain an advantage in pending cases. As the Chief Justice said in his 2011 report, having to examine and enforce ethical violations “would create an undesirable situation in which the Court could influence the outcome of a case by selecting who among its members can participate”. While perhaps true in the abstract, this reasoning presents a terribly disheartening picture of the state of our nation’s highest court. If the judges charged with our country’s most important legal authority cannot set aside partisanship to make neutral decisions about when individual recusal is appropriate, then our democracy is in a very dangerous position.
There is an ethical crisis rocking the American legal profession, led by lawyers who continue to defend their indefensible efforts to help Trump take the wheel of American democracy and knock it off a cliff. It would be a mistake to view these efforts as separate from the Supreme Court’s resistance to holding itself accountable to ethical duties. Supreme Court justices are empowered by the Constitution itself. If these lawyers cannot be trusted to uphold core professional values — impartiality and respect for the rule of law — how can we expect other lawyers to follow suit?