Thursday, June 22, 2023

Appearance Is The Only Thing

The right answer is, the issue never gets to the point of a quid pro quo.
Canon 2A. An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges, including harassment and other inappropriate workplace behavior. A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen. Because it is not practicable to list all prohibited acts, the prohibition is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules, or other specific provisions of this Code.
Strictly speaking, this doesn’t apply to Supreme Court Justices. It should, though. The argument in the canon is sound; and correct. This isn’t about criminal jurisprudence. This is about public confidence in the judicial system.

This is about appearance.
In 2004, Scalia flew with then-Vice President Dick Cheney for a duck hunting trip at a private camp in Louisiana. A few weeks before, the Supreme Court had voted to hear the vice president’s appeal of a ruling that required the disclosure of energy industry lobbyists who had met with his energy policy task force. 
When news of the trip was revealed, Scalia said his stay at the hunting camp involved personal hospitality unrelated to his court work. 
And he said he need not step aside from ruling in Cheney’s case. 
“I do not think my impartiality could reasonably be questioned,” he said at the time. He later joined a 7-2 ruling that shielded Cheney from disclosing the participants in his energy task force.
Justice Scalia was not the arbiter of his actions and their meanings. But no one could tell him that. They can’t tell Justice Scalia that, either. Or Justice Barrett. If the requirement is proof of quid pro quo, and nothing less, the system will rot into corruption with no cure in sight. That level of proof is higher than the DOJ has to meet to put Trump in jail in Florida. And Trump’s corruption is public; the corruption of the Court is still an iceberg. We can assume there is much more than we see.

It would also require the DOJ investigate Justices on a regular basis, whenever there was any appearance of a quid pro quo. The investigation might not find it could be proven, but without an investigation, we’d have a judicial system rotting to the roots. Or we’d have a system constantly under investigation. That’s what the ethical rules are for; to prevent a system with great power which no one can trust.

That is the reason for, and reasoning of, the canon. It is a wisdom we’d best heed. Trump and MAGA aren’t the existential threat to our democracy and government; the current, corrupt, unethical Supreme Court is.


  1. It's not as if people who do quid pro quo don't cover the trail and if there's one thing these liars know it's how to cover trails. Look how long Alito and Thomas kept theirs covered.

  2. Barrett was already tainted by a $2M advance she has received for a book. The grifting goes even deeper with the house sale. Scalia was deeply corrupt with his obvious rubbing of shoulders with the very wealthy that had cases of interest and his refusal to ever recuse himself. Thomas has shown himself to money grubbing in multiple ways, and Alito has been obviously joining in the take. There has still never been a reasonable explanation for how Kavanaugh had several hundred thousand dollars of debt magically disappear overnight. The rot goes to the core.

    Now we have the court, having heard the smallest number of cases in generations, pushing the issuances of decisions on all the high profile cases into the same week (given there is only one day next week scheduled for opinions, maybe the same day). The timing is political, where all these partisan and highly important cases will all drown each other out before the summer and the national holiday. Another shabby attempt to deflect the country from their grab for power and to hide from their own behavior.

    Yesterday's decision in Jones v. Hendrix is just the latest low point from the reactionary majority. If you are actually innocent, convicted of actions that aren't crimes, given a sentence that wasn't available, then there is no recourse. This isn't justice, this cruelty. It is worth reading the dissents of Justice Jackson, Kagan and Sotomayor, that eloquently lay out the moral vacuum of the majority. The same six that have expounded "fairness" to be a reason to deny debt relief to millions during oral arguments (and will likely arise in the written opinion to be issued next week) with gusto sign onto the most unfair of decisions, finding the most cramped narrow interpretations to leave the innocent in jail.

    I'd like to think we are at the bottom, but there is no bottom. We are very likely to get a decision next week on free speech grounds that will gut sections of the civil rights act, allowing for a return of racism, homophobia, antisemitism and more. The college admissions cases will rapidly thin the presence of minorities on campus. It goes on and on.