How Do We Impose Ethical Standards On A Supreme Court That Has None?

Mea culpa.

The phrase is Latin in origin, used to admit that one has made a mistake or done something wrong, particularly if it could have been prevented. “Culpa” is the root word for the word “culpable,” which means “deserving blame.”

And it is an admission that is completely lacking in American government.

After a series of revelations about the questionable behavior of some justices on the Supreme Court, on Tuesday, a chorus of legal experts from across the political spectrum called on Congress to enact ethical standards for a body that has none and dares to claim it doesn’t need one.

Will these justices welcome such a set of ethical guidelines? Will they embrace the ethics they don’t have?

No. 

End of essay.

Stop reading.

Go home.

Ethics, shmethics.

I wish those caustic words weren’t true, but when I look at this court, and when I look at the entirety of our government, ethics, the simple and common-sense principle of “just do the right thing,” it is so embarrassingly and shamefully absent, that I could barely muster more than to spit in every one of their faces if such a face-to-face meeting was possible.

I wouldn’t care if they were wearing a black robe, a suit and tie, or a business dress. They are a disgrace. All of them. Certainly, some are far worse than others, but all of them should face the only threat that matters to them: unemployment. 

And we, members of the electorate, sit as spectators — more like bystanders — fruitlessly cheering for our “team,” whomever we’ve fooled ourselves into thinking they are. I’ve lost track of the number of times I’ve tried to dismantle that notion. Yes, there are two teams, but the contest is not between Democrats and Republicans (or conservatives and liberals) if you prefer. It is the Elected (and their appointees) vs. the Electorate. And the electorate is losing. Badly.

I’m reminded of Russell Crowe’s character in the film “Gladiator.” After dispatching an opponent in a ramshackle arena in some God-forsaken part of the ancient world, he turns to the crowd and shouts, “Are you not entertained?”

Apparently, not enough for us to do anything about it. 

Political accountability is vital to a government anchored in democratic principles, and we should never be a spectator to the lack of it.

We are dealing with people in government who fall roughly into three categories: those who are unethical; those who don’t believe they are unethical and don’t believe they need the guardrails of accountability; and those unwilling to do anything about the unethical, perhaps because they’re too busy worried about Hunter Biden’s laptop, or perhaps because whatever action they take will ring hollow and yield nothing. 

I can’t be sure which of these categories is worse. How can anyone in any of these categories look at themselves in the mirror and proudly claim they are doing the people’s business?

Admittedly, the gathering of prominent conservative and progressive voices testifying before the Senate Judiciary Committee at Tuesday’s hearing was encouraging: Judge J. Michael Luttig, for example, a retired appeals court judge revered by conservatives who was close to being nominated for the Supreme Court; Laurence Tribe, the Professor Emeritus of constitutional law at Harvard Law School and a hero among progressives; and several other former federal justices and scholars in legal ethics. They all spoke in one voice: The Supreme Court must write a code of conduct for itself, or barring that, Congress must write one. A bill requiring the court to do so is somewhere in the ether. 

The hearing’s failure, however, was twofold: It had not enough of one thing and too much of another.

How do you have a hearing on Supreme Court ethics without Supreme Court justices? None of them attended. Chief Justice John Roberts had already declined an invitation from committee chair Sen. Dick Durbin (D-Ill.), to testify before the panel. 

In his response to Senator Durbin’s invitation, Roberts wrote: “Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of the separation of powers concerns and the importance of preserving judicial independence.”

The balls on this guy! Sorry, Mr. Roberts, but your colleagues are the reason for the invitation. They have violated the privileges that one might be afforded with judicial independence. The court has been independent because it was a trusted institution, perhaps the last trusted government institution in this country, and at least one of your colleagues has violated that trust, and quite frankly, the court’s statement that it needs no written ethical standard only further erodes that trust. Yet you have the gall to talk about preserving judicial independence based on the argument that only twice have chief justices testified to the committee (in 1921 and 1935) and that both involved “routine matters of judicial administration.”

I would say that being a flat-out dishonest broker as Clarence Thomas has been, his colleagues defending that behavior, and then unanimously declaring that the justices need no ethical guidelines when every other member of the federal judiciary has one (as do federal employees), is hardly a routine matter of judicial paper-pushing.

Oh, but we’re not just judges. We’re supreme! 

No, you’re just another goober in a black robe, and it wouldn’t be hard to find nine other people to replace you, preferably people who weren’t force-fed to us by the likes of the Federalist Society.

“Sure, Dick. I’ll testify, so long as it’s about nothing important. Maybe we could get robes with gold stripes on them like Chief JusticeWilliam Rehnquist used to wear (for a really silly reason).”

If I were Dick Durbin, I’d have already dispatched a subpoena to Mr. Roberts. “You are not special. You’re a public servant. Nothing more. You get your ass in here right now. Today.”

Lawrence Hurley, NBC News’ Supreme Court reporter (and a Pulitzer Prize winner) who posted Roberts’ letter on Twitter, deftly pointed out that “Roberts’ statement gives no indication justices are even discussing internally whether to adopt an ethics code similar to the one that binds lower court judges.”

Let’s see… The United States Supreme Court: Institute strict ethics, hear cases, collect your salary, and retire.

Or…

Hear cases, go on expensive vacations, drink $500 bottles of wine, sell property, take commissions, don’t tell anyone, collect your salary and retire rich.

Pick your adventure!

At this point, I wouldn’t trust these people to write their own code of conduct. It will likely sound far too Orwellian.

“All justices are equal, but some are more equal than others.”

Oh, wait. They already think that.

SCOTUS is like the Catholic Church of the 1400s. Selling indulgences, thoroughly corrupt, and totally unaccountable. A Supreme Clergy. A schism had to happen before a “reformation” could occur. (Not that the Catholic Church is any model of piety today, but that’s the idea anyway.)

Amanda Frost, a law professor at the University of Virginia who specializes in legal ethics and constitutional law, told the committee that the justices seem completely clueless, unable to perceive the trouble they’ve created for themselves or the growing external criticism over their behavior and the resultant lack of trust in the institution. 

That raises a very troubling question: How can such learned individuals, supposed paragons of wisdom tasked with adjudicating matters of great consequence that determine how we live, not be able to judge the mood of the times? How are they unable to judge if they cannot see what everyone else is seeing? Or are they just unwilling to see? Can such wisdom breed such arrogance?

The irony of judges having poor judgment. 

No one should be beyond reproach. As a writer, I deeply value the importance of an editor. They can catch things I missed, correct mistakes that slipped from my view, or make suggestions I hadn’t thought of. All writers need that. All writers should want that. Another set of eyes in any endeavor is invaluable.

Why wouldn’t we want a higher code of ethics for SCOTUS? They are the highest court in the land. They should be held to the highest possible standards, and not by themselves.

Anyone who can’t admit they are wrong, anyone who objects to the idea of oversight to weed out any potential wrongdoings, anyone who is heedless of an idea that could improve a given circumstance, is not someone we should want anywhere near the levers of power. 

It’s an arrogance akin to that of Donald Trump, the perpetual anti-mea culpa poster boy. One Donald Trump was enough. We don’t need nine more. It’s interesting how they have no interest in ethical accountability when three of them were appointed by a man who also has no interest in being held accountable. And a fourth one is married to someone who many believe was a coup conspirator, and no one is holding her to account, either.

If the justices refuse to concede any degree of humility and refuse to acknowledge the need for accountability, they should be fired. All of them. That might not be ethical reform, but it would be an ethical punishment. If only such a thing was possible.

Ask yourself: Who among us, if we were an employer, would tolerate an employee with such an attitude? We would not.

And here’s the dirty little secret: We citizens are the employer. We are the government. Those people in Congress, or the White House, and their appointees? They’re employees. They work for us. And we are failing miserably as employers.

The other problem with Tuesday’s hearing? The partisanship ― and who better to deliver its most theatrical performance than ranking Republican Lindsey Graham of South Carolina.

“We can talk about ethics, and that’s great,” he intoned with his usual wretched aplomb. “But we’re also going to talk about today the concentrated effort by the left to delegitimize this court, and to cherry-pick examples to make a point.”

Bovine excrement. Graham never wanted to talk about ethics. He wanted to grandstand with that good old, dog-eared canard, “The Left.”

Fellow Republicans on the committee went full bore with that faux outrage psychological projection routine they always do. They accused Democrats of having a double standard on ethics, and of assassination attempts of conservatives on the court. They even pulled out the video from Thomas’ confirmation hearing 32 years ago.

What, no mention of Hunter Biden? Or anything about Mitch McConnell leading the goose-stepping parade to deny Merrick Garland a hearing, or even a meeting, after being nominated by the “one-termpresident” who served two terms? And then doing a complete 180 so that Amy Comey Barrett would get all the privileges denied to Merrick Garland despite the same election year circumstances? 

Goodness, Mr. Graham, you blocked the effort to replace an ailing Dianne Feinstein on the panel, even temporarily, stalling judicial appointments thereby, because, in your words, that would allow support for “a handful of judges that I think should never be on the bench.”

Or, as Mitch McConnell put it: “Senate Republicans will not take part in sidelining a temporary absent colleague off a committee just so Democrats can force through their very worst nominees.”

Right. Only Republicans are allowed to do that. Only the best nominees for our Supreme Court, right, Mitch?

Stick your finger in the air and check the political winds, Sen. Graham. You have considerable talent for being a political windsock (Donald Trump thanks you for your hypocrisy), so it shouldn’t be too hard. Public trust in the Supreme Court was already at historiclows before Clarence Thomas’ barn-burnerrevelations, only to be followed by the legal but horrifically poor optics of Roberts’ wife making more than $10 million in commissions from elite law firms, or Neil Gorsuch’s failure to disclose that his sale of property for more than $1 million to the chief executive of a law firm that routinely has business before the court.

Or are Republicans going to be as tone-deaf about the public perception of the court as the justices are?

And to complain that the “attack” by Democrats was aided and abetted by the “liberal media”? Right now, the only watchdog holding the court to account is the media. They are basically doing your job.

Maybe these Republicans hate ethics because it sounds too much like ethnics. (Or is it the other way around?)

Republicans have long billed themselves as the party of accountability. But they never seem to hold themselves accountable. 

George Santos is still in office, I see.

Speaking of tone-deafness, Ted Cruz, the most unlikable man in Congress, has introduced a bill to limit senators to serving two terms in office. He’s fundraising off it to pay for his campaign to run for a third term in the Senate. And the way the bill is written, he’d be able to remain in the Senate for another two terms. In other words, he’s hoping to convince his colleagues to vote themselves out of a job while sparing his job until 2036. 

I see no Republicans bothered to question Jim Jordan on his dog-and-pony show House Committee hearing in New York last month (who paid for that Jim?) where he said crime in New York is bad while never admitting how much worse it is in Columbus, Ohio, a city in the district he represents. And he has the nerve to file subpoenas targeting Biden officials, yet has ignored a subpoena to appear before the Jan. 6 committee.

Or how about Marjorie Taylor Greene, the harpie whose litany of incredulous stupidity would exhaust the internet’s supply of bandwidth? She somehow thought it sound to support a man now accused of treason for leaking classified espionage documents. Not even a rebuke from a fellow Republican? Why does Kevin McCarthy like MTG more than he likes America? 

Commenting on the Fox Network’s recent legal woes, a disappointed Bill O’Reilly said, “Since I left [Fox News Corp] the template changed from ‘Fair and Balanced’ to ‘tell the audience what it wants to hear.’” Left? No, you were fired, Bill, after the network paid $13 million to settle claims with five women who said you were a misogynist pig.

Not a peep on any of this from the people who should’ve done the peeping.

Even when there is accountability, there isn’t.

Take the Dominion lawsuit. Who at Fox News will really pay the price of offering any admission of guilt? Yes, Tucker Carson lost his job, but was it because he lied to the public or because he criticized his bosses, who took offense and tossed him to the wind? I suppose the network can gaslight and say he was dispatched for lying to viewers, should anyone bother asking (if anyone can even get an answer), but no, the snowflake route of thin-skinned sensitivity was what motivated network executives. They didn’t like being called out for who they were.

Did Dominion even care about accountability, or did they just want the money? It sure seems like the latter.

And in a bitter twist, the money Fox has been ordered to pay Dominion might be largely tax deductible. Is there anyone willing to call that accountability? 

If I were obscenely wealthy, I’d have paid Dominion $787 million just to see them take Fox to trial so I could watch attorneys wipe the smirk off the faces of self-righteous cretins like Tucker Carlson.

Instead, Fox remains a seemingly unsinkable vessel of untruths and toxicity, harboring contempt for an audience that will never know of it, while those of us who do know will never be served our just desserts.

Towards the end of Clint Eastwood’s masterful anti-Western, “Unforgiven,” a character who’d never killed anyone before justifies his shooting by saying the victim had it coming.

Eastwood’s character, William Munny, a repentant gunslinger whose past was filled with unspeakable murders and violence, stares long and hard into the distance, and finally says, as if knowing his own fate, “We all have it comin’, kid.”

No, we don’t. Some will never get what they deserve. 

It is perhaps best that Lady Justice is blind. Were the blindfold removed, she’d likely poke her own eyes out.