Um, Yes…Um, No

Again, these comparisons obscure rather than elucidate the point.

Clarence Thomas has no enforceable ethics guidelines, and without them, it is nearly impossible to hold him accountable. https://t.co/uVcC1KslEK

— emptywheel (blue moon) (@emptywheel) September 27, 2024

Well, it provides an opening for a discussion of why Adams is treated differently than Thomas. And an enforceable ethics code is part of it.

Because Thomas didn’t send texts or emails saying “I’ll overturn Chevron in exchange for this fishing trip”, which is now required under our bribery statutes because (checks notes…) the Supreme Court gutted them in McDonnell, a case brought by (checks notes…) Jack Smith.

— Mueller, She Wrote (@MuellerSheWrote) September 27, 2024

I would not want to be the prosecutor trying to prove bribery charges against Clarence Thomas for changing his judicial philosophy or position based on money received from a right winger like Harlan Crow. Who, according to public accounts (ProPublica) , basically bribed Thomas to stay ON the Court. Because he wanted Thomas to keep doing what he was doing.

There’s a much stronger conflict of interest case there, on any case involving Crow’s interests. Although I think what Crow is mostly interested in, is culture war issues. And Nazi memorabilia.

The better target is ethics violations, especially those that bind federal judges. But the Supremes have rigged the system. On their own authority they have declared themselves appointed for life. They are not subject to mandatory retirement from the bench, as the lower courts are. They can only be removed by impeachment, and since they are the Supremes, they don’t recognize the authority of any judicial body or ethical rules except those they promulgate. And they haven’t presented any. And if they did, who would enforce them, except the other 8? 

Congress does the same, by Constitutional design. But no one in Congress is elected for life.

Whether they would recognize the authority of Congress to impose some on them is an interesting question; especially if they wouldn’t. They are an Art. III court, expressly subject to the Congress (who can set their number, jurisdiction, even length of term). How far would the Supremes go to declare themselves equal to the first and Second Articles, and so implicitly superior? (They decide what the laws mean and what laws apply to them. If that ain’t superior, what is?)

And what if Thomas was convicted, but the Senate refused to remove him? Most Justices have stepped down in face of a threat of investigation. What if Thomas doesn’t?

So, yes, we need a set of ethical rules for the Supreme Court. But we also need a well thought out enforcement system, and a system for retirement from the bench the rest of the Federal bench has to follow. “Supreme” is a Constitutional title, not an existential expression of being.