My rambling on the newly issued Supreme Court Code of Conduct.
The Supreme Court has always had a code of conduct, their formal ethics. It was not published for good reason.
There is only one way to remove a Supreme Court justice, that is through impeachment as described in the constitution. There is no authority given in the constitution for any sort of punishment of a justice, short of impeachment.
Because there is no bite behind the code of conduct, it was sometimes ignored by those justices motivated by agenda and followed, in the most part, by the justices motivated by the constitution and the law.
As an early example of an ethics question, an attorney was nominated for a position on the Supreme Court. They had no experience sitting as a judge. Had written no legal opinions.
They had an employment history of teaching at a couple of universities, then going to work for the White House, then back to the university system where they acted as a law professor and law school dean. From there, they moved back to the White House.
At the White House, they held the position of Solicitor General. As Solicitor General, they were responsible for vetting all bills requested by the president, defending the laws of these United States from challenges. They were ultimately responsible for the actual bills that came out of the White House and in analyzing and providing their guidance on any bill out of Congress moving to the President’s desk for signature.
This person was nominated as a potential associate justice for the Supreme Court. One of the cases that was pending at the time, was the president’s signature legislation. As Solicitor General, they had been responsible for that bill.
Once confirmed to the Supreme Court, one of, if not the first Obamacare cases was heard. Elena Kagan refused to recuse herself, saying that she really didn’t have anything to do with the legislation.
This was considered an ethics violation by many people.
In another situation, a publisher had a case before the Supreme Court. One of the justices had multiple million dollar book deals with this publisher. Sonya Sotomayer refused to recuse herself from the case.
Again, many people considered this to be an ethics violation.
Somebody within the Supreme Court, not necessarily a justice, leaked a draft opinion. This was the first time in the history of the Court where an opinion had been leaked. This is a huge ethics violation. The person who leaked the Dobbs draft opinion has never been identified, much less punished.
So what is happening now, with the Supreme Court publishing their Code of Conduct on 2023-11-13? Nothing much.
The reality is that it is nothing but a cudgel to be used against disfavored justices. It has no teeth behind it as it is a voluntary code of conduct. If a favored justice violates it, we will be told it is no big deal. We will be told that the justice that violated it just made an innocent mistake.
Let’s take a look at a different government creature. As a younger person, he made filmstrips before moving on to become a government creature. First as the mayor of a small city, then as a member of the House of Representatives, then as a senator.
At the time he joined the government, to now, he has amassed a fortune worth over 2.5 million dollars. This is not considered an ethics violation.
Nancy Pelosi’s net worth has gone from around $30 million in 2008 to over $114 million by 2018. This is not considered an ethics violation.
What this means is that a code of conduct is more a set of guidelines than actual rules.
Why is there such a push for a code of ethics/code of conduct for Supreme Court Justices? Because the court is no longer controlled by justices that are agenda motivated.
The attack vector for the last decades has been to call the ethics, morals, and behavior of Republican nominated justices into question.
The dogma lives loudly in you, Senator Dianne Feinstein, to Judge Amy Coney Barrett.
Judge Brett Kavanaugh has been credibly accused of sexual misconduct by several women, …, Senator Kirsten Gillibrand, press release.
There was the entire process of making Judge Bork’s confirmation such a nightmare that he withdrew from consideration.
When Judge Thomas was nominated, there was a rumor of sexual misconduct earlier in his career. Democrats heard the rumor, Joe Bidden had the FBI investigate. That confidential report was then leaked to NPR. NPR reported it as happening.
Once NPR reported it as happening, the senate confirmation committee, led by Joe Bidden, held hearings allowing Anita Hill to testify.
In the end, Judge Thomas was confirmed and is now Justice Thomas.
The left has always hated a Supreme Court that follows the letter of the law of the land, the Constitution. To the left, progressive means a living document that changes to mean exactly what they want it to mean that particular day.
The meaning will change back if that is the agenda they have tomorrow.
There are few social questions in society that raise and cause serious division in our country. Abortion, firearms, free speech, and child safety seem to be the big three.
In Roe v. Wade the Supreme Court found a woman’s privacy game them the right to an abortion. It doesn’t really fit into the constitution. There were other Supreme Court decisions in the same era that found “rights” that were not clearly in the constitution.
The conservative justices that followed started to codify how the constitution should be interpreted. Working from the concept of originalism, they came up with “Text, History, and Tradition.”
When looking at any constitutional issue, you first look at the plain text. If the plain text is implicated, it then becomes the government’s burden to find historical regulations that match the modern-day regulation. Those regulations must have become a tradition.
This means that if there was a law that banned multi shot blunderbuss, but it was only for a few political entities or for a short time, it does not represent a tradition of such a regulation.
This “originalism” then made its way in to the Supreme Court’s opinions.
While the Supreme Court was controlled by agenda-driven justices, originalism didn’t make much headway. It poked through occasionally when agenda aligned with the constitution.
The strength of those opinions was that it generated case law. Every time the Supreme Court said, “text, history, and tradition” there was another case somewhere that would use that argument. This builds.
In 2022, two major “agenda” cases were heard, Bruen and Dobbs. Both cases would have either been denied certiorari or had a different outcome if the court had not had a majority of originalist.
The most outspoken originalist was, and is, Justice Thomas. For years, he has been voicing his dissent on cases that were denied certiorari or were badly decided. His opinions fill books. I’ve not read an opinion of his that wasn’t well written and grounded in the constitution and law.
This means that sometimes I don’t get the result I want, instead I get the right result, the constitutional result.
The left needs Justice Thomas gone. To that end, in late 2022, through today, the left has stepped up their hit pieces on Justice Thomas.
To understand just how reprehensible the left is, in their treatment of Justice Thomas, look no further than the Smithsonian’s National Museum of African American History. When it opened in 2016, Justice Thomas was mentioned only in connection to Anita Hill’s accusation. Anita Hill had a bigger display than Justice Thomas.
The attack vector they chose to use was attacks on Justice Thomas being influenced or corrupted by his friends.
I worked for a company that was owned by a farmer. When I went into interview for the position, he was in his overalls, he had just come from his farm. His second was with him.
I got the job. Over time, I came to know that this “farmer” was a hobby farmer. He was actually wealthy. Perspective, he had purchased a new airplane. It was having the interior replaced and a new paint job. Delivery had been delayed and delayed again. I overheard him talking to the seller in France. The conversation went something like, “I don’t care! If my plane isn’t on the ground in airport name on Friday, I’m canceling the order. I don’t care about the $200,000 deposit. You can keep it!”
His plane was at the designated airport two weeks later. Whatever the hold up was, that conversation broke it loose.
One day, he told his second that we were all going on an “outing”. We all went up to a private race cart track. It used to be open to the public, it isn’t anymore. We all got to drive racing go-carts for the day.
The cost of spending 6 hours driving racing go-carts is up there. I don’t know how much. It didn’t cost my boss anything outside our salaries. Just a few dollars for the fuel.
Justice Thomas and his wife would visit a wealthy friend. This friend allowed Justice Thomas to stay at his home, eat his food, enjoy the trappings of the house, without cost.
If you or I had purchased that sort of vacation from a travel agency, it would be expensive. It didn’t cost the friend anything extra. The cost of an extra steak at dinner? An extra lobster? The gallons of water for Thomas and his wife to bathe? Nothing.
The hit piece didn’t cover it that way, instead they told us how much it would have cost if it had been purchased.
In the same way, they published a second hit piece. Justice Thomas and his wife were visiting that same friend, and they went on a cruise on the friend’s yacht. The cost to the friend was almost nothing. The amount of fuel it takes to move the extra two bodies isn’t actually noticeable on a boat that big.
Again, that hit piece didn’t explain it as no cost to the friend, instead they told the world how much it would have cost if it had been purchased.
These hit pieces keep coming. One of the big issues is recusing. Thomas seldom recuses himself. This is because he isn’t entangled in outside influences, like other justices.
The question that came up was: Did Justice Thomas’ friend have any business before the court? If so, did Thomas recuse himself.
The answer to that is a qualified “no”. The friend inherited at least part of his wealth from his father. One of the assets he inherited was partial ownership of a company.
That company was a member of a case that made its way through the courts. Consider the case of Robert Bevis v. City of Naperville This case is known as Bevis or the longer version. But, there are more plaintiffs than just Mr. Bevis. There is also Law Weapons, Inc, the National Association for Gun Rights, involved with this case.
We speak of McDonald, there were multiple other plaintiffs involved with that case because other cases were combined with the lead case.
This was the case before the Supreme Court. A group of similar companies were seeking certiorari. Buried in that long list was a company that had belonged to the friend’s father and now belonged to the friend. Thomas didn’t know, his clerks didn’t know, so Thomas didn’t recuse himself. There was no opinion issued with the denial of cert.
It was a big nothingburger.
—Code of Conduct for Justices 1 (Supreme Court Nov. 2023)
Every single canon is written with “should”, not “must”. This means it is completely voluntary. The quote is the actual code of ethics.
Don’t let outside relationships influence official conduct or judgment. There is no indication that any of the conservative, originalists have been influenced by outside relationships to modify conduct or judgment. I cannot say the same of the agenda-driven Justices.
What this code of conduct does is it allows the leftists to scream at any justice they target because there are wishy-washy words in the code.
Avoiding the appearance of impropriety is easy if you are a media darling, loved by the left. They see and hear dog whistles nobody else can hear all the time. They are going to claim there is an appearance of impropriety when there is no impropriety. They will use this to stack the court.
If they can get even one Justice to recuse themselves do to public pressure, that can change how a decision goes.