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Op-Ed | The American Prospect | November 17, 2023

The Supreme Court’s Objectivity Theater

Congressional OversightEthics in GovernmentJudiciarySupreme Court
The Supreme Court’s Objectivity Theater

The Court wrote a new ethics code for itself. It’s all but meaningless.

This article was originally published in the American Prospect. Read on the original site here.

In 2003, cryptographer Bruce Schneier coined the term “security theater” to describe public-safety measures that do not actually increase public safety, but that do create an illusion of safety in the public’s mind. Schneier’s main example was the post-9/11 Transportation Security Administration: While TSA checkpoints have become much more time-consuming and intrusive (particularly for transgender fliers) in the 22 years since 9/11, there is no evidence that the agency has ever actually prevented a terrorist attack. The TSA, Schneier argues, is not designed to actually prevent terrorism; it exists solely to give a performance of the government acting to prevent terrorist attacks.

As the TSA is to airport safety, so the Supreme Court’s Code of Conduct is to public faith in the highest court in the land. After months of corruption scandals and plummeting public approval, the Supreme Court released a document on Tuesday to correct, in its words, the “misunderstanding” that the justices “regard themselves as unrestricted by any ethics rules.” That’s a narrow, and telling, statement of intent—calm down, everyone, we do have ethics rules! There’s just one small qualification: They just don’t prohibit any of the things making you mad at us in the first place.

Schneier identifies the gaps in TSA by putting himself in the shoes of a hypothetical bomber and thinking through how he’d get around the system. We can apply the same method to the Supreme Court’s Code of Conduct: If you were an amoral political operative looking to capture the highest court in the land, then according to this document, what could you do without getting in trouble?

Let’s examine the code. It sets out broad, affirmative standards of behavior, few of which are compulsory. As plenty of critics have noted, the word “should” appears 53 times in the code, but the word “must” appears just six times. Just two of those musts involve specific rules, both about obtaining prior approval before being paid for teaching. Similarly, while the document copies a lot of language from the ethics rules for lower courts, Bloomberg Law noticed that the justices struck the word “enforce” from their provisions about maintaining a high standard of conduct. They also cut a mandate to “take appropriate action” if they get “reliable information” that a fellow justice has violated the guidelines.

But the most important omission isn’t a verb in the formal text. While both codes ban—or at least discourage—justices from leading, speaking, or donating to “political organizations,” unlike the lower courts, the Supreme Court never defines that term.

To the lower courts, “political organizations” are candidates or parties, but also “entit[ies] whose principal purpose is to advocate for or against political candidates or parties.” Even this is pretty narrow, but it at least acknowledges that politics includes a lot more than just the formal party apparatuses. Nonprofits, think tanks, lobbying firms, trade associations, grassroots groups, and more play indispensable roles in the American political ecosystem. Most of these groups are not formally incorporated through either of the two major parties, but anyone paying attention knows which camp a given group probably falls in.

Absent a definition of “political organization,” the Supreme Court’s code most clearly prohibits campaigning for parties or donating to political candidates. But the code expressly endorses justices speaking before “an educational institution, a bar group, a religious group, or a non-partisan scholarly or cultural group.” Hell, justices can even be directors, trustees, or officers of “a nonprofit organization devoted to the law, the legal system, or the administration of justice and may assist such an organization in the management and investment of funds.”

Wouldn’t you know it, the Federalist Society just so happens to be “a nonprofit organization devoted to the law.” It doesn’t hide its political leanings—the group describes itself as “a group of conservatives and libertarians dedicated to reforming the current legal order” on the “About Us” page of its website—but it’s not formally connected to the Republican Party. So if Republicans just happen to join, well, the group can’t control that. Without a definition, who’s to say that the Federalist Society is a “political organization”? It’s all about “the law, the legal system, or the administration of justice,” isn’t it? Don’t we want justices to engage with the legal community?

Nothing appears to prevent a sitting justice of the Supreme Court from simultaneously being an executive official of the Federalist Society, American Constitution Society, or any other legal organ of a political movement. Apparently, it would be perfectly ethical for Thomas, Alito, and pals to direct funds and issue orders to their ideological compatriots from the highest bench in the land, so long as the forum through which they do so is not technically a political party.

So the answer to “what could you do without getting in trouble?” is “everything you already were doing.” The code simply doesn’t prohibit any of the actions that caused its creation in the first place. It doesn’t prevent justices from taking all-expenses-paid trips with wealthy political donors, like Justice Clarence Thomas’s vacations with Harlan Crow or Justice Samuel Alito’s fishing trip with Paul Singer. It doesn’t prohibit a justice’s well-connected friends from paying for their relative’s education or from forgiving a large loan to the justice to purchase a present for himself. It doesn’t block a justice from accepting flights on a CEO’s private jet.

In this regard, the justices are worse than their cousins at the airport terminal. Even Schneier would surely admit it’s a good idea to scan carry-on luggage for firearms. And at least the TSA has kept up with the public’s anxieties, like forcing fliers to take off their shoes after the high-profile attempted “shoe bombing.” That doesn’t prevent someone from smuggling a bomb some other way, of course, but it does tell a story of learning from past mistakes. The Supreme Court has no interest in that.

In this, the Court appears to have learned a lot from the rest of Washington. Influence peddling is rampant throughout the government, and it mainly happens through precisely this kind of winking, nodding, and tendentious definitions of words that keeps the cash flowing on K Street.

Congress passed most of America’s ethics-in-government laws in the wake of Watergate, and focused on public disclosure of lobbying and campaign contributions. But just as psychopaths think of new ways around TSA protocols, K Street began thinking of new ways around ethics rules.

As my colleague Jeff Hauser has written, they found a simple solution: Just use forms of speech and payment that don’t meet the technical, legal definitions of “lobbying” and “campaign contribution.” Don’t hire another lobbyist; start an “educational organization” that happens to educate about what your employer wants. Don’t push the limits on campaign contributions; start a PAC or other organizing group that just happens to do things that benefit your favored candidate.

In this respect, objectivity theater has been with us for decades. It’s the verbal tics and innuendos that enable legalized corruption. A different Supreme Court might see this and conclude that America’s ethics-in-government regime is past due for an update. Instead, the justices who’ve lived for decades in secret luxury, paid for by political billionaires, have decided for themselves that their conduct is ethical. After all, they were the ones who blew most of these enormous holes in anti-corruption law with the Citizens United decision in the first place. And it’s not like anyone is going to stop them.

When ProPublica published its first story on Thomas and Crow, progressives like Rep. Alexandria Ocasio-Cortez (and myself) immediately called for Thomas to stand trial for impeachment. Senate Judiciary Committee Chair Dick Durbin (D-IL) quickly squashed that idea. Instead of using the Constitution’s key mechanism for controlling an unruly Supreme Court, Durbin spent the next few months making quite a show of claiming he’d write an ethics code for the Court if they didn’t write one for him.

No new revelation or personal insult to his committee proved enough for Durbin to actually pull that trigger. That’s no surprise: Everyone always knew that a lifelong institutionalist like Durbin would never willingly start a constitutional crisis. Commentators have made much of the lack of an enforcement mechanism in the Code of Conduct, but there always has been an enforcement mechanism—impeachment. The problem is that Democratic leadership is too congenitally timid to use it.

Without a Congress willing to do its job, we must imagine other ways to bring the Court to account. As toothless as the code is, Ginni Thomas’s political consulting career still might violate some of its provisions. Can the public sue the Thomases for breach of duty? What about plaintiffs who lost their Supreme Court cases that affected Harlan Crow’s business interests? Do they have any recourse for their cases being bought and sold? The courts would surely try to kill either of these cases in their infancy. But what else is anyone supposed to do?

Maybe the only thing we can do for sure is vigorously resist the theatrics. Conservative activists and white-shoe lawyers will surely push hard to treat this as the end of the story: A set of rules, no matter how meaningless, mean we all go back to pretending the justices are independent, high-minded god-kings. Refusing to accommodate that—publicly treating the justices like the political, unethical actors they are—is a necessary precondition to finally tackling the real issues.

IMAGE CREDIT: “Supreme Court Building Washington DCby Mathieu Landretti is licensed under CC BY-SA 4.0

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