I want to compliment your judicial writing and specifically your SC related writing. Due to your reported tens of thousands of subscribers puts your SC writing in a unique position. Your opinions matter and the evidence you use reporting truth to power is effective. Please continue to report and encourage our SC to be the third branch of government our founders aspired it to be. All that seems to be lacking on the SC side is the will to succeed. Golden handcuffs are beautiful to looking in the mirror of the mind but mutilate justice in the mind of the masses.
I mean. It would be nice. But it will never happen because they don’t care about legitimacy or ethics but the untrammeled use of power to inflict their views on the rest of us. They are destroying everything that was good about this country.
I fear that even if they manage to do something (which if they all go along with it is likely to be too weak; self-regulation inherently is likely to be) it would give them undue cover.
I think I addressed my thoughts on that at the end here, but to expand a bit, I don't think it will give cover if it doesn't change actions. Have more thoughts on that — relating to the response to the "statement on ethic principles" or whatever it was that they issued earlier this year, that basically didn't provide any cover — but any more organized version of that will have to wait for another time, because I have to be done for today!
A term like "give cover" is a matter of various degrees.
Like an umbrella in a rainstorm, few things give full cover. They do something though and often a lot. That's my concern.
I think your position has been well expressed. I just wanted to note that even if they did the "nice" thing, it might actually be somewhat counterproductive.
I think some of the conservatives realize this and it helps someone like Kavanaugh be okay with a weak self-code.
But, consider this from the chair of the Senate Judiciary Committee [your updated paragraph with links, including addressing him personally, is appreciated] that he posted yet again (I saw it thanks to Kevin Kruse responding):
"Every day that Chief Justice Roberts goes without implementing an enforceable code of conduct undermines the Court’s reputation.
If the Court won’t act, Congress will."
Since we don't know what SCOTUS would actually do, it's hard to tell what would happen. But, it very well is quite likely that if some sort of code of conduct is passed, this would be cited to give cover for inaction.
The "enforceable" part especially either will be ignored (people regularly don't parse statements carefully & once you try, it's often a lost cause in public relations) or there will be some weak aspect of the self-regulatory code that technically is "enforceable" somehow.
Again, thanks for your comments, including going beyond the call of duty probably to respond to someone who comes off as troll-y.
What seem to be missing from the behavior and reasoning of two sitting justices (Alito and Thomas) are qualities that Justice Frankfurter thought “society has a right to expect from those entrusted with ultimate judicial power” - namely, “the habit of self-discipline and self-criticism, incertitude that one’s own views are incontestable and alert tolerance toward views not shared.”
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.
I think Alito is an arrogant whiny political hack whose jurisprudence will be tossed in the dustbin as soon as it looses enough votes to protect it.
But as a general principle of judicial ethics, being good buds with an attorney is not a reason to recuse. Going into small county seats and having a hearing where opposing counsel is a fellow Rotarian and former best man of the judge is just a part of life.
I don’t mean to be dismissive. But isn’t the issue Alito having a close relationship with this attorney? Maybe I’m missing something but I have not seen a relationship beyond family members or past partners as one that invited recusal.
I've gone into great detail on this multiple times, and I think it is far more than "a close relationship." Both this — https://www.lawdork.com/p/alito-moore-wsj-questions — and this — https://www.lawdork.com/p/the-un-ethics-of-sam-alito — were posts devoted entirely to this issue. I think there is a very strong case for recusal here. As to your larger point, though, that kind of *is* my larger point: These relationships *do* cause people to reasonably question the impartiality of the justices. If recusal rules don't cover something like Alito/Rivkin, well, that's bad and we need to rethink recusal rules.
I understand. I didn’t intend to come across as dismissive or even disagreeing with your position that justices should refrain from engaging in conduct that suggests favoritism. I was just being cranky and jaded about how narrow judges tend to be in determining when they’re obligated to recuse.
Oh, certainly. And, I think that's part of my aim in writing on this in this way: I take the position that either the rules should stop this, or the rules must be changed. I think there's a way for the rules to do the work, but the justices have to do something about it. I doubt they will, but the possibility is there.
I mean, the insular cases are still around and still "good" law.
As to the other point ... that's the thing. This isn't a small county seat! To the extent our legal system sets things up such that the national-level appellate judges are individually indispensable (the essence of the "duty to sit" argument), that means the legal system is poorly designed. People who serve in government are not special, and pretending they are, or setting up systems on the assumption that they will be, causes no end of problems when those assumptions inevitably turn out to be false.
> Alito’s ongoing relationship with David Rivkin, a well-known conservative who co-authored opinion-page interviews with Thomas at the Wall Street Journal and is serving as a lawyer for the Moores
I do not believe I am "speaking as an impartial legal observer." I am speaking (writing, to be specific) as an independent legal journalist. I am writing as me. It's a significant part of why I like the freedom this platform gives me, but me writing 1,000 words explaining myself and your response being a conclusory sentence that this "is purely political" is the sort of unengaged response that one might call ... political. My views are pretty clear where I have them, but those views and my analysis are informed by my knowledge and experience and I'm pretty OK with the result. Others seem to be as well.
Yes, your independent journalism on this topic and most others (not all) reflects the preferred position of one of the political parties. It permeates your writing. This ethics topic purporting to reflect a "credibility of the court" problem coincidentally arose as SCOTUS decisions began to be misaligned with Democrat Party politics. Write as you see fit, of course, and certainly many will find value in that position, but again, that's the nature of politically biased commentary; by its nature it appeals to politically biased readers.
Your continued inability to discuss, let alone wrestle with, anything that I wrote says enough for me. You can claim that my concern with ethics is political; I would argue that it is your lack of concern with ethics that is actually political. I also think you’re way off base on any claim about my positions being based in or on party politics. In fact, I think many of those in power within the party that you align my writing with would laugh at your claim and wish that I were more closely aligned.
Where the fuck is the rule that says he has to be impartial anyway? The question is - he wrong? Try and argue that one, not this impartiality bullshit. No one appointed you the bias police
He's wrapping a political argument in apolitical clothing. If he doesn't realize that's what he's doing, it's bias. If he does realizes that's what he's doing, it's cynical. Either way, it's wrong. He can write whatever he wants, as can you, as can I.
We're back to your only circular point: You've decided my point is political because you've decided that it's political, and you don't care about the merits. Yet, somehow, I'm the political one. It's bunk gaslighting.
Here’s your premise: “This ethics topic purporting to reflect a "credibility of the court" problem coincidentally arose as SCOTUS decisions began to be misaligned with Democrat Party politics.”
In other words, people didn’t take a serious interest in and investigate Thomas and Alito’s dubious ethical behavior when they were just back bench cranks, but now that there are enough right wing extremists on the Court to give them real power, people are suddenly interested in what complete ethical shitbags they are.
Thomas' ethical problems have been of serious concern for years, including his failure to disclosure financial information involving his wife. There was coverage of this in the past.
You are correct in that once someone is more important, their wrongdoing is that much more important to address.
Different topic. Menendez is a political actor. His credibility isn't premised on the political independence of his role. Political actors are inherently engaged in political games. And the allegations are that Menendez broke the law, not merely acted unethically.
Why is it a different topic? You seem to be saying that because politicians aren't expected to be ethical because they are political it's OK to criticize them for not being so but since justices are expected to be ethical and non-political you are barred from criticizing their lapses? How exactly are "ethical" and "political" opposed? What does one do if the justice is acting in a political manner? Question his credibility would seem to be the answer.
In any event, Chris Geidner isn't a politician, so that distinction doesn't apply to him.
As to law breaking, check out 5 USC 13101 et seq. I'll wait. People are so tied up with the lack of an "Ethics Code" for justices tend to forget there is a LAW governing part of their conduct.
Both Menendez and Thomas have broken the law numerous times. I'd say it is exactly comparable. Neither has any credibility.
Since you seem to think that "political independence" of the judiciary trumps the need to act ethically or allows anyone to question its credibility, consider the following:
You are in a dispute with a contractor over the scope of remodeling your house. You've won, but the case is on appeal. One judge on the appeals court turns out to be the close friend of the contractor and has been given lavish gifts by that contractor and, in multiple appeals has always ruled in favor of the contractor. You ask for recusal and the judge says he's perfectly capable of judging fairly because that's what judges DO.
Are you a happy camper? Do you find the judge's refusal credible?
I don't think political independence trumps the need to act ethically or the ability to question credibility. Justice Roberts has laid out how the court applies such measures to justices.
The issue is whether that's the end of the matter or should we have some outside body monitor the court. For me, that's an effort to assert politically charges oversight on the court. Should it be Congress that does the monitoring? An independent panel? Who appoints them? Where do we find these impartial observers with pure motivations, when the criticism is we can't even find 9 impartial smart ethical people to serve on the court? If the political process doesn't result in ethical justices, how should we expect it will result in ethical monitors?
As for recusal, of course there are reasons a justice should recuse. Your hypo might present one, so should that ever arise with respect to a SCOTUS justice, he or she should recuse. However, it's not applicable here.
I just fundamentally disagree that the allegations re Thomas and Menendez are analogous.
FWIW, if I had been a senator during the confirmation hearings of the current justices, I would have voted against Thomas and Sotomayor, but for the others. I'm no Thomas apologist, my beef is with this politically motivated effort to undermine the credibility of the court and its decisions. If the GOP had tried these maneuvers during the Warren and Burger courts, the Democrats would have screamed bloody murder, and they would have been 100% correct to do so.
Chris,
I want to compliment your judicial writing and specifically your SC related writing. Due to your reported tens of thousands of subscribers puts your SC writing in a unique position. Your opinions matter and the evidence you use reporting truth to power is effective. Please continue to report and encourage our SC to be the third branch of government our founders aspired it to be. All that seems to be lacking on the SC side is the will to succeed. Golden handcuffs are beautiful to looking in the mirror of the mind but mutilate justice in the mind of the masses.
I don't trust them to self-regulate appropriately
I added a paragraph in to address this point, which is totally fair and in fitting with my past writings.
I mean. It would be nice. But it will never happen because they don’t care about legitimacy or ethics but the untrammeled use of power to inflict their views on the rest of us. They are destroying everything that was good about this country.
I fear that even if they manage to do something (which if they all go along with it is likely to be too weak; self-regulation inherently is likely to be) it would give them undue cover.
I think I addressed my thoughts on that at the end here, but to expand a bit, I don't think it will give cover if it doesn't change actions. Have more thoughts on that — relating to the response to the "statement on ethic principles" or whatever it was that they issued earlier this year, that basically didn't provide any cover — but any more organized version of that will have to wait for another time, because I have to be done for today!
A term like "give cover" is a matter of various degrees.
Like an umbrella in a rainstorm, few things give full cover. They do something though and often a lot. That's my concern.
I think your position has been well expressed. I just wanted to note that even if they did the "nice" thing, it might actually be somewhat counterproductive.
I think some of the conservatives realize this and it helps someone like Kavanaugh be okay with a weak self-code.
But, consider this from the chair of the Senate Judiciary Committee [your updated paragraph with links, including addressing him personally, is appreciated] that he posted yet again (I saw it thanks to Kevin Kruse responding):
"Every day that Chief Justice Roberts goes without implementing an enforceable code of conduct undermines the Court’s reputation.
If the Court won’t act, Congress will."
Since we don't know what SCOTUS would actually do, it's hard to tell what would happen. But, it very well is quite likely that if some sort of code of conduct is passed, this would be cited to give cover for inaction.
The "enforceable" part especially either will be ignored (people regularly don't parse statements carefully & once you try, it's often a lost cause in public relations) or there will be some weak aspect of the self-regulatory code that technically is "enforceable" somehow.
Again, thanks for your comments, including going beyond the call of duty probably to respond to someone who comes off as troll-y.
Why is documentary filmmaker Ken Burns next to Clarence Thomas in a photo taken at the Koch fundraising event???
What seem to be missing from the behavior and reasoning of two sitting justices (Alito and Thomas) are qualities that Justice Frankfurter thought “society has a right to expect from those entrusted with ultimate judicial power” - namely, “the habit of self-discipline and self-criticism, incertitude that one’s own views are incontestable and alert tolerance toward views not shared.”
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
I think Alito is an arrogant whiny political hack whose jurisprudence will be tossed in the dustbin as soon as it looses enough votes to protect it.
But as a general principle of judicial ethics, being good buds with an attorney is not a reason to recuse. Going into small county seats and having a hearing where opposing counsel is a fellow Rotarian and former best man of the judge is just a part of life.
“Being good buds” is not my claim. This is extremely dismissive of the facts presented and described here.
I don’t mean to be dismissive. But isn’t the issue Alito having a close relationship with this attorney? Maybe I’m missing something but I have not seen a relationship beyond family members or past partners as one that invited recusal.
I've gone into great detail on this multiple times, and I think it is far more than "a close relationship." Both this — https://www.lawdork.com/p/alito-moore-wsj-questions — and this — https://www.lawdork.com/p/the-un-ethics-of-sam-alito — were posts devoted entirely to this issue. I think there is a very strong case for recusal here. As to your larger point, though, that kind of *is* my larger point: These relationships *do* cause people to reasonably question the impartiality of the justices. If recusal rules don't cover something like Alito/Rivkin, well, that's bad and we need to rethink recusal rules.
I understand. I didn’t intend to come across as dismissive or even disagreeing with your position that justices should refrain from engaging in conduct that suggests favoritism. I was just being cranky and jaded about how narrow judges tend to be in determining when they’re obligated to recuse.
Oh, certainly. And, I think that's part of my aim in writing on this in this way: I take the position that either the rules should stop this, or the rules must be changed. I think there's a way for the rules to do the work, but the justices have to do something about it. I doubt they will, but the possibility is there.
I mean, the insular cases are still around and still "good" law.
As to the other point ... that's the thing. This isn't a small county seat! To the extent our legal system sets things up such that the national-level appellate judges are individually indispensable (the essence of the "duty to sit" argument), that means the legal system is poorly designed. People who serve in government are not special, and pretending they are, or setting up systems on the assumption that they will be, causes no end of problems when those assumptions inevitably turn out to be false.
Minor point:
> Alito’s ongoing relationship with David Rivkin, a well-known conservative who co-authored opinion-page interviews with Thomas at the Wall Street Journal and is serving as a lawyer for the Moores
I'm pretty sure this "Thomas" should be "Alito".
Thanks! (We all need editors!)
Your position on this point is purely political, dressed in legal ethics clothing.
No, but, thanks for reading.
You're welcome. I suspect you believe you're speaking as an impartial legal observer, but such is the nature of biased reporting.
I do not believe I am "speaking as an impartial legal observer." I am speaking (writing, to be specific) as an independent legal journalist. I am writing as me. It's a significant part of why I like the freedom this platform gives me, but me writing 1,000 words explaining myself and your response being a conclusory sentence that this "is purely political" is the sort of unengaged response that one might call ... political. My views are pretty clear where I have them, but those views and my analysis are informed by my knowledge and experience and I'm pretty OK with the result. Others seem to be as well.
Yes, your independent journalism on this topic and most others (not all) reflects the preferred position of one of the political parties. It permeates your writing. This ethics topic purporting to reflect a "credibility of the court" problem coincidentally arose as SCOTUS decisions began to be misaligned with Democrat Party politics. Write as you see fit, of course, and certainly many will find value in that position, but again, that's the nature of politically biased commentary; by its nature it appeals to politically biased readers.
Your continued inability to discuss, let alone wrestle with, anything that I wrote says enough for me. You can claim that my concern with ethics is political; I would argue that it is your lack of concern with ethics that is actually political. I also think you’re way off base on any claim about my positions being based in or on party politics. In fact, I think many of those in power within the party that you align my writing with would laugh at your claim and wish that I were more closely aligned.
And this is your general reaction to criticism. You belittle the critic and question their motives. That's your prerogative.
"Democrat Party"
Okay.
Good one. You got me there.
Where the fuck is the rule that says he has to be impartial anyway? The question is - he wrong? Try and argue that one, not this impartiality bullshit. No one appointed you the bias police
He's wrapping a political argument in apolitical clothing. If he doesn't realize that's what he's doing, it's bias. If he does realizes that's what he's doing, it's cynical. Either way, it's wrong. He can write whatever he wants, as can you, as can I.
We're back to your only circular point: You've decided my point is political because you've decided that it's political, and you don't care about the merits. Yet, somehow, I'm the political one. It's bunk gaslighting.
Here’s your premise: “This ethics topic purporting to reflect a "credibility of the court" problem coincidentally arose as SCOTUS decisions began to be misaligned with Democrat Party politics.”
In other words, people didn’t take a serious interest in and investigate Thomas and Alito’s dubious ethical behavior when they were just back bench cranks, but now that there are enough right wing extremists on the Court to give them real power, people are suddenly interested in what complete ethical shitbags they are.
My response to this argument is -- well, duh?
And it isn't totally true.
Thomas' ethical problems have been of serious concern for years, including his failure to disclosure financial information involving his wife. There was coverage of this in the past.
You are correct in that once someone is more important, their wrongdoing is that much more important to address.
Why do you think that ethics are "purely political?"
Ethics aren't purely political, the use of ethics arguments to seek recusal of one political party's SCOTUS appointments is.
Hmmm. So any criticism by the GOP on Menendez are not justified because his acts were unethical? They should make no suggestion that he resign?
Different topic. Menendez is a political actor. His credibility isn't premised on the political independence of his role. Political actors are inherently engaged in political games. And the allegations are that Menendez broke the law, not merely acted unethically.
Why is it a different topic? You seem to be saying that because politicians aren't expected to be ethical because they are political it's OK to criticize them for not being so but since justices are expected to be ethical and non-political you are barred from criticizing their lapses? How exactly are "ethical" and "political" opposed? What does one do if the justice is acting in a political manner? Question his credibility would seem to be the answer.
In any event, Chris Geidner isn't a politician, so that distinction doesn't apply to him.
As to law breaking, check out 5 USC 13101 et seq. I'll wait. People are so tied up with the lack of an "Ethics Code" for justices tend to forget there is a LAW governing part of their conduct.
Both Menendez and Thomas have broken the law numerous times. I'd say it is exactly comparable. Neither has any credibility.
Since you seem to think that "political independence" of the judiciary trumps the need to act ethically or allows anyone to question its credibility, consider the following:
You are in a dispute with a contractor over the scope of remodeling your house. You've won, but the case is on appeal. One judge on the appeals court turns out to be the close friend of the contractor and has been given lavish gifts by that contractor and, in multiple appeals has always ruled in favor of the contractor. You ask for recusal and the judge says he's perfectly capable of judging fairly because that's what judges DO.
Are you a happy camper? Do you find the judge's refusal credible?
I don't think political independence trumps the need to act ethically or the ability to question credibility. Justice Roberts has laid out how the court applies such measures to justices.
The issue is whether that's the end of the matter or should we have some outside body monitor the court. For me, that's an effort to assert politically charges oversight on the court. Should it be Congress that does the monitoring? An independent panel? Who appoints them? Where do we find these impartial observers with pure motivations, when the criticism is we can't even find 9 impartial smart ethical people to serve on the court? If the political process doesn't result in ethical justices, how should we expect it will result in ethical monitors?
As for recusal, of course there are reasons a justice should recuse. Your hypo might present one, so should that ever arise with respect to a SCOTUS justice, he or she should recuse. However, it's not applicable here.
I just fundamentally disagree that the allegations re Thomas and Menendez are analogous.
FWIW, if I had been a senator during the confirmation hearings of the current justices, I would have voted against Thomas and Sotomayor, but for the others. I'm no Thomas apologist, my beef is with this politically motivated effort to undermine the credibility of the court and its decisions. If the GOP had tried these maneuvers during the Warren and Burger courts, the Democrats would have screamed bloody murder, and they would have been 100% correct to do so.