Congress should order Supreme Court to adopt ethics code

 

Gordon L. Weil

As a newspaper correspondent, I was once offered a free trip to write an article about an event at a distant location.  The sponsors would pay for my travel and lodging. While I was confident I’d write an objective piece, it’s likely they expected a favorable report.

I asked my editor if I could accept the offer and produce an article for the paper.  He promptly told me to turn it down, because I could not report on an event for which the sponsor had paid my expenses.  I declined the invitation. 

I could have refrained from asking for approval and kept the editor in the dark.  I could have given him the impression that I had paid for my own travel expenses, perhaps while on vacation.  The paper could have allowed me to go.  In no case would the readers have known.  The reason none of that happened was a matter of ethics.

The paper observes journalistic ethics and expected the same of me.  It is not a government agency and its policies are not governed by law.  But the editors want to preserve public confidence in its fairness and independence.  They know that the newspaper has to keep the public’s trust and avoid endangering it in any way.

We are faced today with the same kind of problem with the U.S. Supreme Court. An unelected government body, it makes decisions that can affect everybody in the country.  Yet it lacks any known ethical code.  If it has an undisclosed code, enforcement or lack of it is left to the Court itself.

While Congress, the executive branch and all federal courts must meet ethical standards, the Supreme Court has no such requirement.  In light of recent disclosures and a long-running effort by Sen. Sheldon Whitehouse (D-RI), Congress has begun to question whether there should be publicly announced Supreme Court standards.

The discussion has almost instantly become partisan, because issues have arisen concerning conservative justices, including Justice Clarence Thomas, who received large, undisclosed gifts, Chief Justice John Roberts and possibly others.  Some Republican senators are reluctant to require a Court code, while Democrats seek some reform.

The situation reflects partisanship.  Republican legislators may not want to question the ethics of justices whose decisions they like.  Democrats may like challenging hostile justices.  This focus is revealed in the low headlight beams of short-term party politics without turning on the high beams to see what would be good for the American political system. 

Sen. Richard Durbin (D-IL), the Judiciary Committee chair, invited Roberts to discuss the Court’s substituting a mere declaration for a real ethics code.  Roberts declined, based on concern about protecting judicial independence.  He seemed to assert that it could not be held accountable by Congress.  Checks and balances appear not to apply to the Court.

His attitude is consistent with the increasingly dominant role of the Court in the federal government.  He resists the kind of congressional role contemplated by the Constitution and takes extreme advantage of the respectful reluctance of the Senate to avoid meddling in Court decisions.

Senators Angus King (I-ME), who aligns with the Democrats, and Lisa Murkowski (R-Alaska) jointly proposed legislation that would require the Court to adopt a public ethics code within a year.  Congress would not set the code for the Court.

The Court would be required to appoint an independent official to investigate complaints and to issue an annual report.  The Court would also be authorized to investigate ethical questions, a power that it probably believes it already has.

The investigator could become a magnet for complaints and an annual report might allow ethics violations to linger too long.  And what would happen with the report once issued?

This good bipartisan effort could easily be improved without affecting the Court’s judicial powers.  The Chief Justice could appoint a panel of federal judges to review complaints and make public its findings only if it uncovered possible violations.  A similar confidential court to deal with national security issues already exists. Its members are appointed for fixed terms.

If this panel found an ethics violation, it would report to Congress. The House could then decide whether to impeach the justice.  Federal judges (including one early Supreme Court justice) have been impeached and some have resigned before impeachment.  Finally, the Senate may convict or acquit.

Checks and balances work because judges, members of Congress or presidents may be charged by the House and convicted by the Senate only after a trial.  But the Supreme Court has chosen to be its own judge and has never in the 234 years of its existence disclosed a major violation of any confidential code of judicial ethics.

Roberts should not overly insulate the Court, one of the three equal branches of government, and let checks and balances work. 

 

Is U.S. becoming more Republican? Probably not

 

Gordon L. Weil

People from the blue states are flooding into the red states. 

That may be the impression left by alarmist reports of people leaving Democratic states in the North for Republican states in the South and West.

If true, that could mean growth in the population supporting Trump Republicanism and the decline of liberal Democratic states.  To make sure that the blue state migrants don’t infect red states, the ever-zany GOP Rep. Marjorie Taylor Greene suggests they should not be allowed to vote in their new home states for the first five years. 

While the facts show that Republican-controlled states are growing faster than the traditionally Democratic states, don’t jump to the conclusion that those gains will benefit the GOP. In fact, the reverse might be true.

Why are people on the move?  Nobody knows for sure, but there is little evidence that politics are driving the migration. The reasons may include warmer weather and lower taxes.  Weather is undoubtedly an attraction. Taxes may be a factor but probably not the main reason for most people deciding to move.

Both low corporate taxes and pro-business labor laws attract business investment and create jobs.  People move to new offices and factories. 

But part of the GOP mantra these days is that the people moving south are fleeing the high crime rate in northern cities.  This claim implies that Republicans do a better job fighting crime than the Democrats.

The major problem with this assertion is that it is false.  The crime rate in northern states under Democratic control is lower than the rate in the destination states.  “The Northeast is the region with the lowest crime rates [for violent and property crimes],” according to USAFacts.  These are all Democratic states.  States in the South and West rank the highest.

Republicans make much of Democratic California’s population loss, supposedly due in part to the attraction of conservative Republican Texas.  Florida Gov. Ron DeSantis of Florida offers his Republican state with its millions of migrants as the model for America.

The GOP is closely linked to small town America.  In Maine, it does better in rural countries than in urban areas.  Predominantly rural states like Maine are rare.  The Census shows that people are leaving rural areas for the cities.   

Northern movers to red states do not settle in the rural and most conservative parts of those states.  The fact that the cities where people move are Democratic hardly discourages people from moving.  They head for the cities, and influence the voting behavior there.

There’s an old political saying that when people move from the North to the South, both areas become more liberal.  It’s possible that migrants from the North bring their moderate political views with them and they aren’t washed out in five years.

Look at Atlanta, Georgia.  That state has been reliably Republican since Democrat Jimmy Carter, its native son, was president.  But, in 2020, it voted for Democrat Joe Biden for president and later gave both of its U.S. Senate seats to Democrats.  The main reason was the influx of new voters into Atlanta, not a sudden change of heart in traditional, rural GOP areas.

The same appears to be true in Phoenix, Arizona.  The state had settled into being reliably Republican but now has a Democratic governor and two U.S. senators who align with the Democrats.  As in Georgia, Biden’s narrow win  over Trump led to loud but unsubstantiated claims of vote rigging in the Democrat’s favor. 

Migrants could be helping turn red states to blue.  Austin, Texas, Raleigh, North Carolina, and Orlando, Florida, are the fastest growing big American cities, and all have Democratic mayors. So does huge Houston, Texas.

This trend matters, because these states could swing presidential elections.  While Biden carried counties with 67 million more people than Trump in 2020, they were concentrated in fewer states.  California and New York will still vote Democratic even after an exodus but the people who move elsewhere could help tip the presidential electoral vote away from the GOP.

The political logjam that has given the GOP the power to veto change is likely to break only if the Democrats win more elections even by narrow margins rather than winning fewer elections by larger margins.

The Republicans focus on making it more difficult for Democratic voters to cast their ballots.  Apparently, they hope to preserve minority rule.  But demographics may be working against them. The migrants who bring their politics with them might one day simply outnumber the old-line GOP. It may now be beginning in Georgia and Arizona, and it might soon happen in Texas.

The population shift is neither party’s clever political plan.  Instead, the people are literally voting with their feet.  Watch where they go and what they do when they get there.

 

Here's why support for Supreme Court falls

 

Gordon L. Weil

In dissenting from the Supreme Court’s procedural order suspending lower court rulings on an anti-abortion drug, Justice Samuel Alito issued an historic tirade.

Alito blasted the Biden Administration and fellow justices and revealed both the ultimate outcome of the case and extreme judicial  partisanship.

The case began when a U.S. District Court judge in Texas overturned the Food and Drug Administration’s long-standing  approval of mifepristone, an abortion drug.  Then, a U.S. Circuit Court partially overruled the lower court judge, but cut the FDA authorized period for its use until it finally decides  the case. 

The Supreme Court temporarily suspended both rulings, allowing continued use of the drug as approved by the FDA.  Alito wanted to confirm the Circuit Court position.  Justice Clarence Thomas opposed the Supreme Court order without explaining his reasons.

Alito also claimed that limiting the drug’s use pending a final decision would not cause anybody harm.  His judgment seemingly ignored the sudden inability of some women to use a legal medication over what might be a period of many months.  It is difficult to believe he did not understand that.

In his dissent, Alito forecast that the Supreme Court would later support the FDA.  He interpreted the suspension of the lower court rulings as a message that the majority would reject any lower court attempt to overrule the FDA’s experts when the case came back to the Supreme Court.  Having participated in the Court’s private discussions, he was most likely right. 

Alito vented his frustration.  He attacked the Biden Administration, saying “the Government has not dispelled legitimate doubts that it would even obey an unfavorable order....”  When had the president disobeyed courts orders?  What made such doubts “legitimate” when they have never been raised in court?  Did he pick it up “doubts” from media speculation?

Supreme Court justices are expected to display a “judicial temperament.”  That means they should appear calm and thoughtful, giving people confidence in their hugely important decisions.  Alito blew it. 

The angry jurist also charged that the suspension amounts to a major decision being made by a procedural order.  This would be the so-called “shadow docket” that he had previously supported as part of a Court majority.  He attacked two justices who had earlier opposed it but who now used it, he claimed  Having lost, why shouldn’t his two colleagues accept his position?

But the Court was only issuing a procedural order doing nothing more than leave the FDA ruling in place until it finally decided. It changed nothing.  Alito believed the lone district judge’s unscientific decision was worthy of being observed, at least in part, until the case was finally resolved. That would have been the real “shadow docket.”

He also revealed his partisan bias.  Earlier, in opposing liberal lower court decisions, he had forcefully urged judicial respect for FDA expertise.  He had scorned a single District Court judge for issuing a nationwide order overruling the agency.  Now, when it suited him to second guess the FDA, he reversed course and supported the conservative District Court’s national ruling.

Alito’s dissent highlighted several reasons why public confidence in the federal courts has reached a new low point. 

The Court has allowed single District Court judges, like the conservative jurist sitting alone in Amarillo, Texas, who had made the mifepristone decision, to issue orders covering the entire country.  This power is not expressly authorized by law and is relatively new.  And the anti-abortion plaintiffs were able to cherry pick his court and be sure of getting a favorable decision.

Congress does not screen District Court nominees carefully enough and apparently  relies on trusting that bad or political judges will be overruled by higher courts.  Sen. Susan Collins was the only Republican senator to vote against the questionable Texas judge, who will hold office for life unless removed by Congress.

The Chief Justice has failed to exercise appropriate leadership.  Roberts was surely aware of Alito’s unusual attack on the executive branch before it was published.  He neither induced the justice to drop it nor expressed concern about it. 

Roberts seemed to ignore Thomas having received undisclosed annual gifts from a wealthy and influential conservative. The Chief Justice refused to testify at a Senate committee looking at the Court’s ethics following the Thomas disclosures.  Previously, Roberts had allowed only an in-house investigation by inexperienced staff of the leak of Alito’s ruling overturning Roe v. Wade.

Thomas and Alito are right-wing radicals.  Alito regularly flaunts his partisanship.  Thomas masks his bias in a dubious philosophy.  Roberts asserts a degree of judicial independence that ignores the checks and balances that supposedly are central to the government.

If presidents and senators insist on federal judges as political partisans with little ethical accountability rather than as independent and responsible jurists, the Supreme Court will continue to fall in public esteem.