By now, everyone who keeps tabs on the US Supreme Court knows that they came up with an unenforceable code of ethics last November.
The same day, Sen. Sheldon Whitehouse exposed it as a ruse because it had no enforcement mechanism.
Every other Federal Judge in the United States has to abide by a code. It is enforceable. The judge can be removed from the bench as a final judgement. There are lesser penalties, but that's the most important one.
You knew about Justice Thomas and Justice Alito's transgressions and how Chief Justice Roberts was protecting them and the Court from accountabily.
The New York Times just got a leak about how Justice Neil Gorsuch wrote a 10 page missive about the code, revealed by reporter Jodi Kantor.
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.
There is another story here that leaks are still coming from the Court designed to show those on "wrong" side of decisions.
While the legal office at the court dispenses ethics advice to justices upon request, the counsel is not binding, and all justices have not consistently sought it out, according to several people familiar with the office.
All three liberals supported enforcement. Sotomayor, Kagan, and Jackson. Justice Kagan proposed involving a panel of veteran federal judges that would give the justices incentive to consult the judges about ethics issues. Later, if the Justices were criticized, say, for accepting a gift, they could respond that they had obtained clearance beforehand.
That modest proposal went nowhere.
The three liberal Justices insisted that the rules needed to be more than lofty promises. But their argument never had a chance.
When Chief Justice Roberts unveiled the code, the three liberal justices signed it thinking it was the best they were ever going to get. All nine Justices were a party to the code.
Gorsuch's memo was discussed in conference, and in later writings.
Jusice Gorsuch, Trump's first appointee to the court, is known for his "no one tells me what to do" streak, with warnings of government overreach, and a record of libertarian, and sometimes unpredictable rulings. As a teenager he watched his mother, who was the head of the Environmental Protection Agency, face a brutal Congressional investigation into the mismanagement of a toxic waste program and eventually resign.
At the time the Justices were debating the ethics question, Justice Gorsuch was working on a book asserting that Americans were afflicted with too many laws. He warned colleagues that enforcement could undermine the independence of the Court by putting other figures in the position of judging the Justices.
Absent in Jodi Kanter's story are Justices Kavanaugh and Barrett.
Justices Roberts, Thomas and Alito were absolutely opposed to a binding code of ethics. Gorsuch's opposition to the code and his 10 page memo of criticism to enforcement were previously unknown.
What we don't have is the 10 page memo itself. The most likely reason for that is that it might expose the leaker. If you remember, Trump wanted to jail the journalists behind the Dobbs decision leak. The Politico reporters held their ground and never revealed their source. Roberts investigation went nowhere because the Justices themselves were never quizzed under oath as staff were.
Sen.Sheldon Whitehouse continues to this day to try to pass legislation for an enforceable code of ethics. His bill, S.359 Supreme Court Ethics, Recusal, and Transparency Act of 2023, is still awaiting a vote in the Senate. He's got until Jan. 3rd, when the new Senate is sworn in with a Republican majority to get it passed. The problem is the House Republican majority now and after Jan. 3rd. It would take a miracle for it to pass both Houses.
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*A play on the "Singin' in the Rain," "Moses Supposes Erroneously" routine.
