Opinion | Why Supreme Court ‘ethics’ legislation would do more harm than good

That idealistic impulse is driving renewed calls for Supreme Court ethics regulation following media reports about Justice Clarence Thomas’s relationship with a real-estate developer. New legislation by Sens. Angus King (I-Maine) and Lisa Murkowski (R-Alaska) would compel the Supreme Court to publish a code of conduct and hire an ombudsman. King and Murkowski are considered centrists in their respective parties (King caucuses with the Democrats), and their bill is being received as a moderate alternative to more-intrusive legislation backed Sen. Chris Murphy (D-Conn.) and 25 other Senate Democrats.

But the bipartisan scheme would also undermine the separation of powers and fuel the ongoing campaign to discredit the judiciary. It would order the court to “designate an individual, including an employee, to process complaints” against the justices. The complaints could include past or present conduct that is “prejudicial to the administration of justice.” This official would post a report describing the complaints to the Supreme Court’s website “with the names of the complainants anonymized” and consult with the marshal of the court about enlisting “federal agency personnel” to investigate justices for violations.

In other words: A new internal compliance bureaucracy at the Supreme Court, foisted on it by Congress. Whatever you think of Thomas’s or any other justice’s financial disclosures, this is a terrible idea, and it’s worth stepping back to understand why.

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The Constitution vests “The judicial Power of the United States … in one supreme Court,” establishing that tribunal as the head of one of three independent branches of government. The court is still politically accountable: A majority in the House of Representatives can impeach a justice, triggering a Senate trial. Two-thirds of senators can then remove the justice from office. And while federal prosecutorial guidelines say a president — the head of the executive branch — can’t face indictment while in office, there’s no such limit protecting the justices who sit atop the judicial branch.

In other words, justices are subject to corruption laws like any other public official, and they’re subject to removal from their posts in the only way the Constitution allows — impeachment. Moreover, as Chief Justice John G. Roberts Jr. noted in a letter to Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.), the Supreme Court in 1991 adopted the disclosure and financial regulations that apply to all federal judges.

So what problem, exactly, do senators want to solve? Allegedly, that the code of conduct issued by the Judicial Conference of the United States — a body including the chief justice and 26 select judges on lower courts — applies formally to lower court judges, not justices of the Supreme Court. Much of the code consists of broad statements such as, “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” and “be patient, dignified, respectful, and courteous.”

This legislative push isn’t really about an obscure statement of ethical principles. It’s about interfering with the Supreme Court. Both the King-Murkowski and Murphy bills would stand up a new reporting and investigative bureaucracy to permanently scrutinize the court. Even if the justices announced their voluntary adoption of some sort of code of conduct (as Justice Elena Kagan said in 2019 was under consideration), it would be unlikely to change their behavior or decisions, or blunt Democrats’ ideological criticism. Then the complaint would inevitably be that the justices are not sufficiently accountable, and pressure for new enforcement mechanisms would continue.

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But the justices’ independence is a feature of the constitutional system. Lower courts have a formal process for fielding complaints of judicial misconduct, because lower-court judges can be censured or temporarily suspended from cases by panels of fellow judges. The Supreme Court is different — it does not, by definition, answer to other courts, so any code of conduct would be unenforceable within the judicial branch. Accountability at the highest levels of the executive and judicial branches must come from the political process: impeachment. By installing a permanent investigative bureaucracy to scrutinize the Supreme Court, the Senate legislation would warp constitutional lines of authority.

It doesn’t take much imagination to see how the King-Murkowski ethics scheme could degenerate into a partisan circus. The selection of the new Supreme Court complaint processor would itself invite controversy and intrigue. Activist groups would orchestrate the filing of partisan complaints, and anonymized reports on the Supreme Court website would stir fevered speculation.

Even President Biden’s left-leaning Supreme Court commission warned that such a complaint system “may be open to abuse.” With nothing to do except process complaints, the new court employee would be under pressure from congressional majorities to conduct perpetual investigations, undermining the court’s collegiality and judicial effectiveness. Investigative staff could be a new source of leaks.

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For a political realist, these corrosive consequences of a Supreme Court compliance bureaucracy would obviously exceed any ethical benefits.

But let’s be honest. The campaign for court regulation of this kind is not driven primarily by an excess of idealism — or by a genuine conviction that with the right procedural adjustments, the Supreme Court can recover its supposedly lost legitimacy. That’s how these reforms are sold, and perhaps that pitch convinces centrists such as King and Murkowski.

But progressives know how power works. They know that the current Supreme Court has an independent, conservative majority, and they want it diminished, disrespected, under suspicion. The left doesn’t have the political power to impeach any conservative justice, but perhaps it can leverage criticisms of the justices in the media to persuade Congress to create a new bureaucracy that will delegitimize the court indefinitely. Now that’s political realism of the most ruthless variety.