Scott L. Cummings: Public confidence in the Supreme Court, with the release of the Roe decision, has dropped to all-time lows. - NBCNewsTHINK
Despite this dangerous threat to judicial independence, there is no consensus on a pathway forward. TheWhile some raise constitutional questions about whether Congress could regulate the court, a more practical concern is whether a Supreme Court Code of Ethics would actually make a practical difference. The justices would remain the ultimate arbiters of their own compliance, and their desire for autonomy would provide little incentive to police internal ethics with consistency and rigor.
An ethics code would also create more public accountability. Being able to call out violations of an applicable rule would bring more pressure to bear for ethical compliance. During confirmation hearings, senators could elicit commitments by nominees to follow the letter of a code once confirmed, much as they currently do by asking judges whether they will honor precedent.
This leads to a second objection to a code: How it could be weaponized by justices to gain advantage in pending cases. As the chief justice put it in his 2011, having to review and enforce ethical violations “would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate.” Although perhaps true in the abstract, this rationale presents an awfully dispiriting picture of the state of our country’s highest court.
There is an ethical crisis roiling the American legal profession, led by lawyers who continue to defend their indefensible efforts to help Trump grab the steering wheel of American democracy and drive it off a cliff. It would be a mistake to see these efforts as separate from the Supreme Court’s resistance to hold itself accountable to ethical duties. Supreme Court justices are empowered by the Constitution itself.
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