For the Court’s Critics, It’s Never Truly Been about Ethics

The Supreme Court’s publication of a code of conduct is a thankless task. Never mind that it allows everyone to view the Court’s ethics obligations in one place or that the justices adopted it unanimously. I cannot improve on Dan McLaughlin’s analysis of the code’s adoption, which he described as doing “something you think is right when it’s being demanded by the wrong people for the wrong reasons as part of a campaign to accomplish the wrong ends.”

There was never any reason to believe that taking this step would satisfy Senate Democrats and their liberal dark-money backers. Their campaign has never really been about ethics but rather intimidating a Court that it despises for being faithful to the Constitution. Eric Levitz said the quiet part out loud in New York magazine back in May:

[P]ublic confidence in the “independence” of a reactionary and power-hungry court surely is not desirable from a progressive point of view. . . . The more fragile their perceived legitimacy, the more reluctant they may be to put conservative dogma above majority opinion.

It is therefore in the interest of the progressive movement to undermine the Court’s legitimacy.

The type of pseudo-ethical “expose” we have recently seen aimed at the most conservative justices was to Levitz an exercise in which

the end goal . . . isn’t to secure ethics reforms that will render the Supreme Court less vulnerable to perceptions of corruption. The point is (or at least, should be) to promote the perception of judicial corruption.

There are, of course, hazards to the delegitimization of the Supreme Court. . . . [W]eakening its authority (and thus, judicial review) seems preferable to acquiescing to right-wing minority rule.

So the reaction of the Left’s Court watchers to the issuance of an ethics code should be no surprise. Here are some examples:

Steve Vladeck more explicitly moved the goalposts, as if the enactment of an ethics code were never the issue:

Predictably, the response to the Court’s ethics code among Senate Democrats, starting with Majority Leader Chuck Schumer and head conspiracy theorist Sheldon Whitehouse, is dissatisfaction, their common theme being that the rules are missing an enforcement mechanism. This is a refrain echoing any number of dark-money groups, including Demand Justice, the Alliance for Justice, Fix the Court, Take Back the Court, Accountable.US, Stand Up America, and the Revolving Door Project. By enforcement mechanism, these critics mean that they won’t be satisfied until Congress is overseeing the Supreme Court, an intrusion into a coordinate branch of government that would be considered unacceptable — not to mention unconstitutional — if another branch were to try to do the same to members of Congress. Then again, given their track record on the law, is their opportunistic campaign to transform ethics into an ideological wrecking ball a surprise?