Progressives’ bogus ‘ethics’ war on Supreme Court is a warning for 2024

May 22, 2023

Robert Delahunty

Washington Fellow

This essay was originally published on May 17, 2023 by New York Post. It was coauthored with John Yoo, who is a University of California, Berkeley law professor, an American Enterprise Institute nonresident senior fellow and a Hoover Institution visiting fellow.

Critics of the Supreme Court’s conservative turn have manufactured attacks on Justice Clarence Thomas for receiving gifts from Texas billionaire Harlan Crow.

Progressives recently revealed the agenda behind the storm when they unveiled a code of ethics for the justices, complete with an investigatory body to police it.

But their effort to harass the court will run smack into the same obstacle that’s frustrated other progressive schemes to remake our nation’s institutions: the Constitution.

Democratic senators introduced several judicial-ethics bills in the wake of reports Crow had taken Thomas on luxury vacations, bought Thomas’ childhood home from his mother to turn into a museum and paid the private-school tuition of Thomas’ grandnephew.

These senators remain vague on the exact ethics rules because they aim primarily to create a process to investigate the justices and even force them off controversial cases.

Sen. Sheldon Whitehouse (D-RI), one of the loudest critics of conservative judges, would create a complaint system where anyone can allege a justice has violated his duty of impartiality or federal law or “engaged in conduct that undermines the integrity of the Supreme Court.”

A committee of lower-court judges would investigate these complaints, take evidence, hear from witnesses and issue “orders.”

It seems obvious that ideological partisans of all stripes would take advantage of this system to harass the justices and seek to force their recusal in any important case.

Progressives also want to message brilliant conservatives that they should find a career elsewhere.

Such proposals, and the attacks behind them, reveal progressive Washington at its worst.

Self-righteous leftists cannot help but try to sweep away any institution that blocks their path to heaven on earth.

Crippling Supreme Court justices’ independence is part of their broader efforts to upset the stabilizers of the American republic: ignoring the Electoral College’s process for selecting the president; creating new states to change the Senate’s balance of power; ending the Senate filibuster; evading Congress’ power of the purse through emergency government; packing the Supreme Court with new justices.

As with these other progressive plots, Democrats’ proposals to regulate the justices should fall before the Framers’ Constitution.

Congress certainly has some authority regarding the federal courts.

While the Constitution’s Article III establishes the Supreme Court, it also grants Congress the discretion to fix the number of justices and whether to create any lower court at all.

Congress has a role in appointing justices through the Senate’s consent to a president’s nomination.

It may also subject justices and other judges to laws of general applicability, such as criminal laws or the requirement to pay income tax.

But the Constitution denies Congress other powers over the judiciary.

Congress may set but not reduce the justices’ salaries.

The Constitution guarantees that once appointed, justices shall enjoy life tenure during “good behavior.”

Neither Congress nor the president can remove them from office at will.

The only permissible method for removal is impeachment: The House of Representatives must accuse them of treason, bribery or some other impeachable offense, and the Senate must convict by a two-thirds vote.

That is Congress’ exclusive remedy for judicial misbehavior.

The Constitution thereby forbids Congress from imposing lesser sanctions and precludes a code of judicial conduct enforceable through measures that are, or are tantamount to, removal.

This is not to say Congress can do literally nothing. It could demand the disclosure of personal financial information, but only for the case of an individual justice against whom it has started impeachment proceedings.

Such information would enable it to decide whether a justice is indeed living up to the “good behavior” standard.

Beyond that, though, Congress is impotent.

Progressives will cry that nonregulation would allow the justices to fall prey to bias. But they forget to read the Constitution as a whole.

Suppose a plaintiff sues Harlan Crow in a case that appears before Justice Thomas.

He or she need not rely on vacuous ethics codes and filled-out forms for protection.

The Fifth Amendment’s due-process clause guarantees the plaintiff the right to be heard by an impartial tribunal; Thomas, like any judge, would have a constitutional duty to recuse himself from a case where he might have an interest or bias.

The Framers put these checks in place to ensure the judicial branch is firmly independent of both Congress and the executive.

While Democrats today have the presidency and Senate, their campaign against Thomas and the court preview their plans should they win full control of Washington in the 2024 elections.

Americans will determine not just party control over the White House and Congress, but the Supreme Court’s continued independence and the separation of powers that has served our republic so well for so long.