If you hadn’t heard by now, Democrats in Congress and their left-wing allies are really in a state of panic about the Supreme Court, and it’s easy to see why.
The Left can’t risk leaving the country to the American people and their elected legislators, but need politically driven judges to impose their agenda.
Well, the Supreme Court today is not on board with that, and the Left has had enough. The word is that the Senate Judiciary Committee may vote next week on a bill that pretends to be about “ethics,” but might as well be called “The Judiciary, Know Your Place Act.”
This bill, S. 359, is formally called the Supreme Court Ethics, Recusal, and Transparency Act and was introduced by Sen. Sheldon Whitehouse, D-R.I.
Who could be against ethics, right? Well, this legislation is not about ethics, recusal, or transparency. It’s about appearing to respond to a fake “ethics crisis,” but really creating new ways to manipulate the Supreme Court and its decisions.
America’s Founders designed the judiciary to play an important, but defined, role in our system of government. Judges decide individual cases by interpreting and applying written law—the Constitution, statutes, or regulations—to the facts of each case. But rather than make the law mean what they want so that their decisions further certain political interests, a majority of justices today take the law as it is, and go where the law requires.
In this way, they are more impartial than political, because they focus on following the right process to make decisions, rather than picking the results they want and working backward from there to achieve them.
The American people aren’t buying much of what the Left is trying to sell, and the judges who follow—rather than trying to change—the law are no help either.
So, the Left is following an organized strategy to demonize Supreme Court decisions it doesn’t like by suggesting that the justices responsible for them are unethical, corrupt, or biased.
Senate Majority Leader Chuck Schumer, D-N.Y., added to this message in a “Dear Colleague” letter dated Sunday, admitting that the Left hates the current Supreme Court because it has produced the wrong “policies.”
Schumer then revealed the Left’s strategy. It begins with exposing how the “MAGA-captured Supreme Court feels free to accept lavish gifts and vacations from their powerful, billionaire friends.” The most recent attack, published by ProPublica, reveals how Justice Samuel Alito went fishing with Paul Singer in 2008. Sounds a lot like the same publication’s story about how Justice Clarence Thomas and his wife, Ginni, vacationed with their friend Harlan Crow.
Fishing and vacationing? Really? Well, you see, Singer and Crow have one key thing in common: They are rich. Gotcha! Launch the Big Smear.
The public knows nothing about the actual laws and rules governing decisions judges must make about ethical issues, such as financial disclosures, recusal from individual cases, or out-of-court activities.
The Left is counting on that ignorance so that people won’t be the wiser about, for example, whether Alito or Thomas were required to disclose the personal hospitality they received.
They were not. In fact, the rules did not require disclosure of personal hospitality, such as transportation or lodging, until just a few months ago.
Alito explained in a Wall Street Journal op-ed (which he should not have had to write) why he did not have to disclose the transportation or lodging related to that three-day fishing trip 15 years ago.
In addition to such false or misleading smears, the Left ignores that the justices they like do the same thing. The now-deceased Justice Ruth Bader Ginsburg, for example, traveled to Israel in 2018 on a billionaire’s dime. Morris Kahn picked up the whole tab, including transportation, lodging, and meals. In fact, Ginsburg took more trips that year paid for by third parties than any other justice.
Former Justice Stephen Breyer took a trip to Europe paid for by billionaire Democratic Illinois Gov. J.B. Pritzker. To my knowledge, the Left has not called out Ginsburg, Breyer, or other liberal judges for such actions.
In response to the fake “ethics crisis” they claim to have uncovered, Democrats then offer legislation such as the Whitehouse bill. It would require the Supreme Court to “issue a code of conduct for the justices of the Supreme Court.”
Since the Constitution, not Congress, created the Supreme Court, however, Congress has no authority to require the court to take that step. None other than Democrats’ favorite liberal scholar, professor emeritus Laurence Tribe of Harvard Law School, told them so. In a statement submitted for a Senate Judiciary Committee hearing in May, he wrote that any effort by Congress to impose a code of conduct on the Supreme Court would be nothing less than “a stark violation of the separation of powers.”
That’s not the worst part. The bill’s real purpose is to create a process for pressuring the Supreme Court to skew its decisions. Under this proposed legislation, any “individual” could file unlimited “complaints alleging that a justice … has violated” the code of conduct required by the bill, existing law requiring recusal whenever “impartiality might reasonably be questioned,” or “any other applicable provision of Federal law.”
The bill provides no guidelines, definitions, or criteria for these complaints. They can be as simple or as detailed as the filers choose. But every single one of them must be referred to a “judicial investigation panel, which shall be composed of a panel of 5 judges selected randomly from among the chief judges of each circuit of the United States.”
Read that again if you need to. Every complaint alleging that a justice has done virtually anything the complainer doesn’t like must be investigated by five of the 13 U.S. Court of Appeals chief judges. The panel must then make findings and recommendations “for necessary and appropriate action by the Supreme Court.”
Here’s just one way that the two parts of this strategy might come together. The Left has been drumming into our heads that Supreme Court decisions that promote the wrong “policies” are evidence that the justices who produce them are, in some way or another, corrupt, unethical, or biased.
In other words, decisions the Left doesn’t like are themselves proof that certain justices must not be impartial. Well, questions about a justice’s impartiality are one of the grounds for filing a complaint that five chief appeals court judges must then investigate.
Finally, whether any lower federal court judge must recuse from an individual case would be determined by a “reviewing panel” composed of “3 judges selected at random from judges of the United States who do not sit on the same court.”
That’s right: For the first time in American history, whether a particular judge may handle a particular case will be determined by judges elsewhere in the country. If that isn’t bizarre enough, whether a particular Supreme Court justice may participate in considering a particular case will be determined by his or her eight colleagues.
A prescription for more thoroughly destroying collegiality and institutional integrity, as well as for causing sheer chaos in the judicial process, would be difficult to imagine.
If the Left is willing to claim that a fishing trip is proof of corruption, or a vacation is evidence of bias, it appears willing to do practically anything.
The plans are no doubt already underway for legions of activists to file all sorts of complaints, about all sorts of things they don’t like, against justices who simply try to follow the law.
The leak of the draft opinion in Dobbs v. Jackson Women’s Health Organization, threats to kill justices, congressional leaders vowing to retaliate for unfavorable decisions, and the recent claims of unethical behavior will seem like a mild annoyance compared with what things will be like if this legislation were to become law and the complaints come pouring in.
This is the most serious threat to the independence of the judiciary since America’s Founding. The Declaration of Independence reveals that judicial independence was, in fact, among the very reasons for that founding. It is what distinguishes the American judicial system from systems elsewhere, including in other countries with written constitutions.
Destroying that independence would eliminate an essential ingredient of our liberty.
This piece originally appeared in The Daily Signal
