(C) Daily Kos This story was originally published by Daily Kos and is unaltered. . . . . . . . . . . The Supreme Court's new ethics code is a fig leaf covering nothing [1] ['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.'] Date: 2023-11-13 Introduction The Supreme Court published a CODE OF CONDUCT FOR JUSTICES OF THE SUPREME COURT OF THE UNITED STATES today. Without even reading it, a dispassionate observer can dismiss it as an expedient ass-covering document that checks the “We did something” box without doing much. How can you be sure? If the Court had intended to have meaningful rules, they could have adopted the ethics code that already covers every other federal judge — and have done with it. But they did not. Why not? There are three possibilities. One, they decided to be bound by a higher standard. We can dismiss this based on the unethical track record of conservative justices that mandated a formal code of conduct in the first place. There is no way Thomas and his fellow reprobates would agree to anything more than the bare minimum stuffed with exceptions. Two, it is the same as the existing federal code for judges with a different title. Then why bother? What would be the point of a separate but equal position? Three — this seems the most rational possibility — it is weak tea. The Code is divided into two main sections. The Canons After a brief preamble, the document lays out five Cannons: did you get your head stuck running to the head stuck doing CANON 1: A JUSTICE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY CANON 2: A JUSTICE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES. CANON 3: A JUSTICE SHOULD PERFORM THE DUTIES OF OFFICE FAIRLY, IMPARTIALLY, AND DILIGENTLY. CANON 4: A JUSTICE MAY ENGAGE IN EXTRAJUDICIAL ACTIVITIES THAT ARE CONSISTENT WITH THE OBLIGATIONS OF THE JUDICIAL OFFICE. CANON 5: A JUSTICE SHOULD REFRAIN FROM POLITICAL ACTIVITY. The substance of each of these cannons is well-formatted, full of definitions, and replete with explanation. But here are two factors that render the document meaningless. One factor is the use of language like, “In deciding whether to speak or appear before any group, a Justice should consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public.” Here and in many other places, the code says that the Justices are to police themselves and rely on what they themselves think might create “an appearance of impropriety.” That will not restrain Thomas or Alito. The other factor is the toothlessness of a code that lacks an enforcement process and penalties. What happens if a Justice contravenes it? Will Roberts admonish the miscreant with stern language? That might work on people capable of shame (Thomas and Alito?). But it seems as effective as declaring, “Stop! Or I shall say stop again.” The Commentary After the Cannons comes the Commentary. It is here that the Court gets squirrelly. The justices are not stupid. They know people will ask, “Why not just adopt the existing federal judge ethics rules?” The document addresses that here. “This Commentary does not adopt the extensive commentary from the lower court Code, much of which is inapplicable. It instead is tailored to the Supreme Court’s placement at the head of a branch of our tripartite governmental structure. Why is it “inapplicable?” The answer is that lawyers, needing to justify the unjustifiable, offer sophistry. In plain English, they pursue a “baffle them with bullshit” strategy. For example, in addressing why the Justices should have far fewer grounds for recusal, the document offers an 818-word rationale laden with excuses, replete with case law, and swimming in complaints about how punitive a Justice’s workload is (as if it is not the Court Clerks who do all the heavy lifting anyway). At one point during the rant, the Court offers this, “In short, much can be lost when even one Justice does not participate in a particular case." To present a complete analysis, they would have bookended that with another sentence saying, "In short, much can be lost when even one Justice does favors for a ‘friend’.” But they did not. Further: “Justices are also encouraged to engage in educational, religious, charitable, fraternal, or civic extracurricular activities not conducted for profit, even when those activities do not relate to the law. Participation in both law-related and other judicial activities helps integrate Justices into their communities and furthers public understanding of and respect for the judicial system.” This imprecise but expansive language opens the door wide for organizations to pay “expenses” for junkets. The phrase, “even when those activities do not relate to the law,” then takes the door off its hinges. As I write, billionaires’ lawyers are creating a slew of non-profit organizations whose sole function will be to have “activities” in five-star, warm-weather resorts that offer superior fishing. Conclusion The Supreme Court had to do something to deflect criticism and forestall the oversight the legislative branch (at least the Democratic Senate) was promising. What they did was the least they thought they could get away with. But I suspect their cynical effort to stamp out controversy will be nothing more than pouring gasoline on the fire. 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