In the wake of pivotal rulings on abortion, religious liberties, affirmative action and bureaucratic authority, politicians and the press are now demanding a new Supreme Court code of ethics to cast doubt on its rulings. While these demands may not stem from pure motives, we must acknowledge the kernel of truth within them.
A critical insight in Federalist 51 makes a simple case for ethics reform: men aren’t angels.
The Founders worried about corruption among officials and sought its antidote. Consider their argument against Congress’s selection of the president: The fear was that people would make corrupt bargains in the governmental body. Both the choosers and the chosen might be suspect in those instances. The Electoral College’s advantage is its absence of long-term interests, which made it less susceptible to corruption.
The situation of Supreme Court justices, shielded from elections and serving essentially for life, raises valid concerns about potential corruption and the need for public accountability. The court has added to these constitutional rules layers of secrecy to their deliberations; decades after the release of Supreme Court opinions, our understanding of how the sausage was made is often limited. This setup makes accusations more plausible and leaves the American people longing for some say regarding their rulings.
That said, we should not change how the court is appointed, its term of service or the secrecy of its deliberations. All contribute necessary goods for that institution serving its constitutionally intended role.
Its mode of appointment and term of service bolster its decisions against the winds of immediate passion and prejudice. The justices can focus on the law’s demands, including giving equal legal protections to unpopular litigants. Its secrecy permits the justices to deliberate honestly without fear that their undeveloped thoughts or a careless observation might end up on the cover of every major newspaper. This security allows the justices to hone and better refine legal arguments, thus enhancing the quality and rightness of the resulting decisions.
But we could use clearer, more inclusive rules for disclosure and conduct that remove even the appearance of corrupt activity.
The starting point should be broader and fuller disclosures of significant gifts or perks given to justices. We need not know of every stick of gum or cigarette exchanged while on a work break, but the public should know about items, trips or accommodations of a certain value.
Once we establish this transparency, we also should consider what items and situations justices should not accept because of the potential special treatment or favor. In these ways, we could maintain the current structure and verdicts of the court while lessening the chance for opportunists to delegitimize the institution.
We should also guard better against real corruption if and when it arises. Consider the recent revelation that a friend of Clarence Thomas may have loaned him money to buy his now-famous RV back in 1999. If the public knew all of the details, we would likely not find bribery or an attempt to gain influence over judicial decisionmaking. But the fact that we know so little about this significant transaction and have few means to gain it should make us worry.
Another instance involving a different justice may involve serious questions about whether certain benefits, gifts or loans could have affected judicial decisions. Would conservatives be as dismissive of these stories if the court’s majority were again progressive and the stories about Justice Sonia Sotomayor or the recently retired Justice Stephen Breyer? Granted, doing so restricts justices from doing things normal citizens would get to do with or for each other. But in accepting a position on the nation’s highest court, the justices must also accept that their lives cannot be entirely normal and will demand extra caution in how they interact with potential litigants before them.
In Proverbs, we find the claim that “The wicked accepts a bribe in secret to pervert the ways of justice.” Our legal system firmly establishes this principle, requiring justices to base their decisions on the law rather than personal interests. Recent revelations and accusations against current justices have revealed nothing approaching a clear violation of this principle. Still, we should have better ways to show that justices have held to it.
We can debate the best avenue to set up these rules. The court itself seems stalled in any internal effort. There are legitimate debates about how far Congress can do so. But let us establish the rightness of such rules and then engage in good-faith debate over who should implement them.
In an uncertain future, we might be thanking ourselves for doing so. Let us ignore the false accusations and concentrate on the need for reform and its advancement.
Adam Carrington is associate professor of politics at Hillsdale College.