Those who believe in the imperative to protect the Court as an institution ought to be as stalwart in defending it as its foes are trying to destroy it.
Commentary
Faced with a U.S. Supreme Court that poses the most substantial threat of any single institution to progressive rule, its opponents have drawn blood in their long-running campaign to delegitimize and destroy it.
The supreme irony is that,
once again, in attempting to fend off its would-be conquerors, the court has only undermined itself while emboldening its would-be conquerors—under a chief justice who has sworn above all else to defend the court as an institution.
For the latest example, look no further than the Supreme Court’s newly issued “
Code of Conduct.”
The court, by its own admission, issued the document not because the justices have failed to comport themselves appropriately but because, incensed at their ostensible minority on the bench, the left has launched a
hypocritical smear campaign against the court’s leading originalist lights, endeavoring to paint them as unethical, mainly by the company they keep.
We know the court only issued the code under left-wing duress because, as explained in the preamble to the document, “for the most part these rules and principles are not new: The Court has long had the equivalent of common law ethics rules.”
It’s only to “dispel [the] misunderstanding”—ginned up by the left—“in recent years ... that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules” that the Supreme Court felt compelled to issue the code, according to the document.
Left-wing billionaire-backed publications have concocted frivolous claims—namely against the perpetually besieged but indomitable Justice Clarence Thomas and his similarly
unbowed colleague Justice
Samuel Alito—that such justices are corrupted and compromised for having taken nefarious trips with wealthy friends or having delivered verboten speeches before groups that the left loathes, amid other guilt-by-association hatchet jobs. In so doing, the media and Democrat legislators parroting the unfounded allegations have fomented a moral panic over ethics.
This information operation persists despite having been
summarily debunked at every turn. No matter. In the eyes of the court’s critics, traveling with well-heeled friends or affiliating with the wrong charitable organizations must be made hanging offenses to add a veneer of legitimacy to the real underlying offense: sitting on the court while conservative.
The Democrat majority on the Senate Judiciary Committee has been particularly outspoken. Its leaders have repeatedly savaged the court by issuing hyperbolic statements, holding sham “ethics” hearings, and even submitting
amicus briefs. They recently nearly went so far as to subpoena Justice Thomas’s friend Harlan Crow, who’s a real estate developer, and prominent conservative judicial activist Leonard Leo. The purpose, of course, was to harass and bully them. Most relevant, the Democrat senators have long clamored for a “code of conduct.”
These efforts should be seen as part and parcel of a decades-long political and information warfare operation, building on
“Borking,” a shameful episode presided over by then-Senate Judiciary Committee Chairman Joe Biden; the still-more-shameful high-tech lynching of Justice Thomas alongside attacks on his wife, Ginni, a friend of mine, who was disgracefully dragged before the chilling Jan. 6 Committee to testify; the caper to cast Justice Brett Kavanaugh as a misogynist if not a criminal monster; President Biden’s commission to “reform” the court; and then the
Dobbs leak, culminating in the formation of menacing mobs outside justices’ homes, and an assassination plot against Justice Kavanaugh.
The purposes of these efforts are manifold, and all of them are malign. They include pushing conservative justices to recuse themselves from pivotal future cases; intimidating wobbly justices into going along with progressives on those cases; attacking the integrity of the court so that it subordinates itself to the wishes and whims of Democrat legislators and other aggressors; or, if all else fails, sparking a nullification crisis. Drying up pools of conservative judicial activists and their defenders is a lesser but not insignificant goal, too.
On its face, the Supreme Court’s code of conduct contains unobjectionable terms aimed at ensuring that in both appearance and actuality, justices act with the utmost integrity in public and private life. Among its redeeming qualities is that it takes an inadvertent dig at one of its
chief critics on the Senate Judiciary Committee in instructing justices to not “hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.” In a commentary that follows the code, the justices emphasize Canon 3B, which deals with recusal, likely in an implicit bid to neutralize Democrats’ increasingly
loud calls for conservative justices to beg off of certain cases.
The problems with releasing such a document are threefold, however. First, by dint of issuing it, the court may be seen as legitimizing the illegitimate attacks of the court’s critics—regardless of the justices’ clarification that the document is pro forma and meant to correct false claims. Second, it shows those critics that the court will blink in the face of political pressure, thereby incentivizing still further attacks. Third, once issued, the written terms will surely be hung around conservatives’ necks, only intensifying the political pressure and overall delegitimization effort.
After the court issued the code, Senate Judiciary Committee Chairman Dick Durbin (D-Ill.)
said, “We have to decide whether or not ... [it] is appropriate in disclosure and enforcement.”
Echoing this point, his colleague and fellow critic Sen. Sheldon Whitehouse (D-R.I.)
said: “This is a long-overdue step by the justices, but a code of ethics is not binding unless there is a mechanism to investigate possible violations and enforce the rules. The honor system has not worked for members of the Roberts Court.”
Senate Majority Leader Chuck Schumer (D-N.Y.), too, predictably
called the lack of an enforcement mechanism a “glaring omission.”
The message is clear: Their appetite to control the court can’t and won’t ever be sated and will likely only escalate.
It’s understandable that the Supreme Court justices would find it untenable to remain silent in the face of unending attacks, lest the silence be perceived as an admission of guilt. Their reluctance to rebut Democrats directly is also understandable, given the importance of keeping the court independent of and above partisan politics.
But caving to the demands of those who wish to destroy the court will only incentivize still greater agitation—particularly as we head into an election year in which Democrats are
simultaneously waging a lawfare campaign against the Republican presidential frontrunner that’s likely to lead to appeals that could end up before it.
Those who believe in the imperative to protect the court as an institution ought to be as vigorous and stalwart in defending it as its foes are in trying to destroy it.
Perhaps, as Justice Alito has done, members of the court ought to speak out forcefully to defend themselves—even better, with the unanimous support of their colleagues.
Most important in the immediate term is that, having made the initial error of conceding to those who would obliterate it, the Supreme Court refuses to budge even a single inch further.
Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
