Gumming It at the Supreme Court
I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…
It’s a sort of national disgrace that a code of conduct for the highest court in the United States should have fewer teeth than even its lowest courts. And by fewer, I mean, none.
The canons devised by the Supreme Court are a little akin to a visit to a dentist for a cleaning but when you come home you have nothing left with which to chew your food.
It took two hundred thirty-four years for the Court to devise any ethics code at all, and the result of all those years of contemplation was essentially to steal the existing code of conduct for all other United States judges, with the exception of one word: “shall.”
Wherever that word is used in the lower courts code, the Supremes substitute a wiggle word: “should.”
So for example where a lower court judge “shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned,” a Supreme Court justice “should” do that, but doesn’t have to.
Where the less exalted judge must disqualify for personal bias or prejudice, the Supreme Court justice doesn’t have to.
Where the ordinary judge’s spouse, or minor child still living at home, has an interest in a matter before the court, that judge must recuse from the case, but not the Supreme Court Justice.
The new high court ethics code grandfathers, or grandmothers, or grandparents in any Justice who has already embarrassed the Court with any unseemly conduct, but with no “have-to’s” involved it doesn’t really matter.
So undisclosed expensive gifts from billionaires with business before the court may remain embarrassments, but no cause for concern.
The whole need for a Supreme Court code of conduct, the Justices maintain in a Statement of the Court at the very beginning of their wiggly fifteen-page document, is “the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.”
And so it’s all a misunderstanding. Right.
Before any sense of renewed respect for one of America’s highest institutions can be restored, the Justices are gonna need to work on something else.
Authentic self-respect.