Democratic Party operatives have raised these purported ethics concerns about GOP-appointed justices in Democratic Party periodicals to fuel Democratic Party Senators in their effort to impose oversight of the Court, ostensibly on ethics grounds. You assert that these claims, plus decisions with which you disagree, have created "ins…
Democratic Party operatives have raised these purported ethics concerns about GOP-appointed justices in Democratic Party periodicals to fuel Democratic Party Senators in their effort to impose oversight of the Court, ostensibly on ethics grounds. You assert that these claims, plus decisions with which you disagree, have created "instability of the court as an institution."
That, my friend, is a political opinion.
Indeed, later in your piece, you say that "increased scrutiny" is having the intended effect of "leading people to speak up about cases" where a justice's impartiality might reasonably be questioned. Yes, that's the point of the criticism, to create an impression that the impartiality of certain members of the Court might be questioned. Which members might that be?
Your dismissal of various counter-arguments (e.g. Alito's "weakly evidenced dismissal") makes that clear, and after reiterating your support for Senate Democrats to act more aggressively, you turn to Kagan's suggestion that adopting a code would be helpful in persuading others that the Court is adhering to "the highest standards of conduct."
Note that she doesn't say they are doing anything other than that now, just that a formal code would be helpful to address criticism. But you suggest that even if the Court were to adopt a code, it isn't certain that all justices would adhere to it. Which would those be? Well, of course it is those justices that speak with conservative advocacy networks and lawyers that write in the WSJ. They cannot be trusted to adhere to a formally adopted code of ethics for the Court. And that's a problem, you say, because the Court may have to address matters relating to Trump and elections.
"If the justices can't create an environment in which people believe that ethics matter," the Court just might deserve it when people stop adhering to Court decisions. For example, the Court's credibility as relates to Alabama is on the line if the Court doesn't decide in favor of Democrats. Just as it would be if the Court were presented with a case involving Trump and the 2024 elections. Indeed, any solution short of what you advocate means that "questions, and instability, wll fester."
Advocacy is fine, advocate away. But an honest, unbiased treatment of the issue might consider the political motivations of Senate Democrats, the writers and periodicals bringing such issues to the fore, and the proposed solutions you advance. Instead, it seems such motivations are pure, and it's only those ethically challenged GOP-appointed justices and their GOP supporters that are politically motivated.
FWIW, I'm not a Republican, I support a balanced Court and I prefer greater disclosure by the justices. I'd also love to see a mandatory retirement age.
But I am deeply suspicious of the motivations of both political parties and believe the independent judiciary is essential for the preservation of this nation, clearly one of the foundational principles for our system of government. Thus, I disagree with these efforts by one political party to impose political oversight of the Court, regardless of whether it's premised on purported ethics concerns or otherwise. Members of the Court have built a very public career over many years. They've been appointed by the executive branch, survived the confirmation process and associated background investigations, and they've been confirmed by the Senate. I absolutely trust their ethics more than I do political actors like the Senate Judiciary Committee, regardless of the political party of the President appointing them.
#2 is not a way to lead in if you want me to actually respond. It's just obnoxiousness — both in form and substance — that suggests that you are far more partisan than you claim later in the piece (as was your earlier "Democrat Party," which I see you cleaned up here). The last sentence of paragraph 2 is made up. That is not what I claimed. It's not what I wrote or think. The instability of the institution has many causes, with these ethics issues being but one of them. Transparency issues are another. We've already gone several rounds months ago on the difference between decisions I disagree with and decisions that lack foundational basis or respect for precedent in such a way that, yes, they are likely to create instability. Your failure to acknowledge that continues unimpeded, I see.
#3 is false.
#4 is wrong. It is increasing the skepticism of all justices' actions, and I think that's a good thing.
#5 doesn't make any sense, because it's backed up by an entire past post describing precisely how Alito's dismissal of the recusal calls was weakly supported.
#6 is wrong. "Note that she doesn't say they are doing anything other than that now, just that a formal code would be helpful to address criticism." That's not all that she said. I didn't transcribe the full answer here (although I did link to it because I provide my readers with as much access to primary sources as possible so that they can check things out for themselves, a key way to address any questions about my writing), but she said, "I think it would be a good thing for the court to do that. It would help in our own compliance with the rules, and it would, I think, go far in persuading other people ..." And, the rationale for the second section, which you assume as being more of your claimed partisanship from me is based on the fact that after the issuance of the "Statement on Ethics Principles and Practices" in April, some justices began noting the reason for their recusals, while others did not. It was a "may" (or optional) principle in the statement, with exceptions, so it is being utilized in a way that makes it only effective for those justices who choose to do so.
#7 is just you, again, reading my writing through the frame you've chosen by which to characterize it. It's not how I wrote it, and it's not what I think. I've written extensively on the Alabama cases, and my thinking is in no way about what you've written here.
#8 is really just rehashing your repeated, incorrect claim about my coverage. I do look skeptically at the Senate Dems — and write about it when I think it appropriate. The last sentence is just made up.
#9: See above where you maybe should have written the second paragraph (and some of the other parts) differently if you want to do this here. As to the things you'd like, cool.
#10 is actually interesting, and I'd wished you'd led off with this this evening instead of your weird insinuations that I'm some sort of Democratic Party functionary. I think your understanding of what constitutes an "independent judiciary" is wrong, as it appears to ignore the actual foundational principles of our government, which include checks and balances and *limited* powers for each of the branches. I also don't buy the premise behind that idea that "one political party [is seeking] to impose political oversight of the Court," as I believe the ethics concerns are legitimate and, in some instances, longstanding. As for the claim that "Members of the Court have built a very public career over many years," a good part of why we're here right now as to Thomas is that much of what he has done has been the opposite: very private. And, finally, as to "absolutely" trusting their ethics more than others, I don't think we should "absolutely" trust the ethics of any government official.
To your credit, I do appreciate that you engage. You don't have to. That said, the engagement fits a pattern, one which Greg Lukianoff writes about in his upcoming book (which he discussed in an interview with Lex Fridman over the weekend), which he calls a rhetorical wall.
You present these views as objectively correct, but others view this court as correcting decades of poor jurisprudence despite great pressure being brought to bear, pressure like threats of court-packing, new checks-and-balances, protests in front of their houses and doxing of their children. Republicans generally see this Court as a welcome return to stability, and the pressure being brought to bear as political counter-measures, reflecting political activism. So yes, your view that actions of members of this Court have created "instability" is a political opinion, no matter how steadfastly you believe it.
While your arguments for new ethics oversight measures draw a nexus to existing legal and governance principles, it is simply true that the Supreme Court has never before been subject to Congressional oversight in the manner you advocate. It will be a brand new political tool to be wielded by the political branches over the judiciary, and we should be extremely cautious should we elect to adopt such measures.
Do I think the Court is independent in the sense that it operates outside any limitations? Of course not. That's a strawman. I mean it in the traditional sense, that federal courts are intended to operate independently of the political branches. Indeed, we see this Court explicitly recognizing limitations in its role that prior Courts all too happily ignored. This has nothing to do with spending power or threats about the size of the Court when Congress doesn't like the Court's composition, but rather reflects a judicial philosophy that the Court should refrain from policy-making.
You may not agree, you may believe this Court is actually engaged in its own political activism, certainly many Democrats make that argument. But on balance, I'll accept the 9 members of the Court policing themselves over the imposition of politically charged Congressional oversight, as I believe our system is best served by resisting the application of political pressure on SCOTUS and letting these justices do their work. If one of them engages in some impeachable offense, then by all means, proceed with impeachment proceedings. Short of that, leave them alone.
Fine.
Democratic Party operatives have raised these purported ethics concerns about GOP-appointed justices in Democratic Party periodicals to fuel Democratic Party Senators in their effort to impose oversight of the Court, ostensibly on ethics grounds. You assert that these claims, plus decisions with which you disagree, have created "instability of the court as an institution."
That, my friend, is a political opinion.
Indeed, later in your piece, you say that "increased scrutiny" is having the intended effect of "leading people to speak up about cases" where a justice's impartiality might reasonably be questioned. Yes, that's the point of the criticism, to create an impression that the impartiality of certain members of the Court might be questioned. Which members might that be?
Your dismissal of various counter-arguments (e.g. Alito's "weakly evidenced dismissal") makes that clear, and after reiterating your support for Senate Democrats to act more aggressively, you turn to Kagan's suggestion that adopting a code would be helpful in persuading others that the Court is adhering to "the highest standards of conduct."
Note that she doesn't say they are doing anything other than that now, just that a formal code would be helpful to address criticism. But you suggest that even if the Court were to adopt a code, it isn't certain that all justices would adhere to it. Which would those be? Well, of course it is those justices that speak with conservative advocacy networks and lawyers that write in the WSJ. They cannot be trusted to adhere to a formally adopted code of ethics for the Court. And that's a problem, you say, because the Court may have to address matters relating to Trump and elections.
"If the justices can't create an environment in which people believe that ethics matter," the Court just might deserve it when people stop adhering to Court decisions. For example, the Court's credibility as relates to Alabama is on the line if the Court doesn't decide in favor of Democrats. Just as it would be if the Court were presented with a case involving Trump and the 2024 elections. Indeed, any solution short of what you advocate means that "questions, and instability, wll fester."
Advocacy is fine, advocate away. But an honest, unbiased treatment of the issue might consider the political motivations of Senate Democrats, the writers and periodicals bringing such issues to the fore, and the proposed solutions you advance. Instead, it seems such motivations are pure, and it's only those ethically challenged GOP-appointed justices and their GOP supporters that are politically motivated.
FWIW, I'm not a Republican, I support a balanced Court and I prefer greater disclosure by the justices. I'd also love to see a mandatory retirement age.
But I am deeply suspicious of the motivations of both political parties and believe the independent judiciary is essential for the preservation of this nation, clearly one of the foundational principles for our system of government. Thus, I disagree with these efforts by one political party to impose political oversight of the Court, regardless of whether it's premised on purported ethics concerns or otherwise. Members of the Court have built a very public career over many years. They've been appointed by the executive branch, survived the confirmation process and associated background investigations, and they've been confirmed by the Senate. I absolutely trust their ethics more than I do political actors like the Senate Judiciary Committee, regardless of the political party of the President appointing them.
By paragraph:
#1: OK.
#2 is not a way to lead in if you want me to actually respond. It's just obnoxiousness — both in form and substance — that suggests that you are far more partisan than you claim later in the piece (as was your earlier "Democrat Party," which I see you cleaned up here). The last sentence of paragraph 2 is made up. That is not what I claimed. It's not what I wrote or think. The instability of the institution has many causes, with these ethics issues being but one of them. Transparency issues are another. We've already gone several rounds months ago on the difference between decisions I disagree with and decisions that lack foundational basis or respect for precedent in such a way that, yes, they are likely to create instability. Your failure to acknowledge that continues unimpeded, I see.
#3 is false.
#4 is wrong. It is increasing the skepticism of all justices' actions, and I think that's a good thing.
#5 doesn't make any sense, because it's backed up by an entire past post describing precisely how Alito's dismissal of the recusal calls was weakly supported.
#6 is wrong. "Note that she doesn't say they are doing anything other than that now, just that a formal code would be helpful to address criticism." That's not all that she said. I didn't transcribe the full answer here (although I did link to it because I provide my readers with as much access to primary sources as possible so that they can check things out for themselves, a key way to address any questions about my writing), but she said, "I think it would be a good thing for the court to do that. It would help in our own compliance with the rules, and it would, I think, go far in persuading other people ..." And, the rationale for the second section, which you assume as being more of your claimed partisanship from me is based on the fact that after the issuance of the "Statement on Ethics Principles and Practices" in April, some justices began noting the reason for their recusals, while others did not. It was a "may" (or optional) principle in the statement, with exceptions, so it is being utilized in a way that makes it only effective for those justices who choose to do so.
#7 is just you, again, reading my writing through the frame you've chosen by which to characterize it. It's not how I wrote it, and it's not what I think. I've written extensively on the Alabama cases, and my thinking is in no way about what you've written here.
#8 is really just rehashing your repeated, incorrect claim about my coverage. I do look skeptically at the Senate Dems — and write about it when I think it appropriate. The last sentence is just made up.
#9: See above where you maybe should have written the second paragraph (and some of the other parts) differently if you want to do this here. As to the things you'd like, cool.
#10 is actually interesting, and I'd wished you'd led off with this this evening instead of your weird insinuations that I'm some sort of Democratic Party functionary. I think your understanding of what constitutes an "independent judiciary" is wrong, as it appears to ignore the actual foundational principles of our government, which include checks and balances and *limited* powers for each of the branches. I also don't buy the premise behind that idea that "one political party [is seeking] to impose political oversight of the Court," as I believe the ethics concerns are legitimate and, in some instances, longstanding. As for the claim that "Members of the Court have built a very public career over many years," a good part of why we're here right now as to Thomas is that much of what he has done has been the opposite: very private. And, finally, as to "absolutely" trusting their ethics more than others, I don't think we should "absolutely" trust the ethics of any government official.
That's while I'll keep writing what I write.
To your credit, I do appreciate that you engage. You don't have to. That said, the engagement fits a pattern, one which Greg Lukianoff writes about in his upcoming book (which he discussed in an interview with Lex Fridman over the weekend), which he calls a rhetorical wall.
You present these views as objectively correct, but others view this court as correcting decades of poor jurisprudence despite great pressure being brought to bear, pressure like threats of court-packing, new checks-and-balances, protests in front of their houses and doxing of their children. Republicans generally see this Court as a welcome return to stability, and the pressure being brought to bear as political counter-measures, reflecting political activism. So yes, your view that actions of members of this Court have created "instability" is a political opinion, no matter how steadfastly you believe it.
While your arguments for new ethics oversight measures draw a nexus to existing legal and governance principles, it is simply true that the Supreme Court has never before been subject to Congressional oversight in the manner you advocate. It will be a brand new political tool to be wielded by the political branches over the judiciary, and we should be extremely cautious should we elect to adopt such measures.
Do I think the Court is independent in the sense that it operates outside any limitations? Of course not. That's a strawman. I mean it in the traditional sense, that federal courts are intended to operate independently of the political branches. Indeed, we see this Court explicitly recognizing limitations in its role that prior Courts all too happily ignored. This has nothing to do with spending power or threats about the size of the Court when Congress doesn't like the Court's composition, but rather reflects a judicial philosophy that the Court should refrain from policy-making.
You may not agree, you may believe this Court is actually engaged in its own political activism, certainly many Democrats make that argument. But on balance, I'll accept the 9 members of the Court policing themselves over the imposition of politically charged Congressional oversight, as I believe our system is best served by resisting the application of political pressure on SCOTUS and letting these justices do their work. If one of them engages in some impeachable offense, then by all means, proceed with impeachment proceedings. Short of that, leave them alone.
Lukianoff's discussion of the "perfect rhetorical fortress" is at 1:02 in the video for those interested.
https://www.youtube.com/watch?v=buarAx_u2qg