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Ben Weingarten

Federalist Senior Contributor; Claremont Institute Fellow

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Opinion

The Supreme Court’s code of conduct is a ploy to smear the Right

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Ben Weingarten

Federalist Senior Contributor; Claremont Institute Fellow

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The Supreme Court adopted a new code of conduct on Nov. 13, outlining self-enforced rules the justices must follow. Senate Judiciary Democrats pushed for this new code amid ethics scrutiny on Justice Clarence Thomas, who is accused of accepting luxury vacations from a Republican donor.

Straight Arrow News contributor Ben Weingarten contends that this new code of conduct is just another effort by Democrats to make Republicans appear unethical and reduce the Right’s political power.

The purposes of these efforts are to make Conservatives recuse themselves from pivotal cases, intimidate wobbly justices into going along with progressives on those cases, attack the integrity of the Court so it subordinates itself to and submits to Democrat legislators and activists, or if all else fails, spark a nullification crisis. 

On its face, the Supreme Court’s Code of Conduct is unobjectionable. Its terms are reasonable. In it, the justices emphasize Canon 3B, which deals with recusal, likely to neutralize Democrats’ increasingly loud calls for conservative justices to beg off of certain cases.

There are three problems with releasing the document, though: First, merely by issuing it, the Court may be seen to be legitimizing the illegitimate attacks of the Court’s critics. Second, it shows those critics that the Court will blink in the face of political pressure, incentivizing further attacks. Third, now the written terms will surely be hung around Conservatives’ necks — only Conservatives’ necks, of course — only intensifying the delegitimization effort.

Faced with a Supreme Court that threatens its dominance, the Democrat Party is trying to destroy it.

The Supreme irony is this: In attempting to fend off the destroyers, the Court has only undermined itself while emboldening them – and under a chief justice who has sworn above all else to defend the Court as an institution.

I’m referring here to the Court’s new “Code of Conduct.”

By its own admission, the Court issued the document not because the justices have been unscrupulous, but because, incensed that they’re in the minority, the left has launched a hypocritical smear campaign against the Court’s leading originalist lights to paint them as unethical.

The Court only issued the code under left-wing duress because, as it explains in 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 is only “to dispel th[e] misunderstanding” – created by the left that – “in recent years…the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules,” that the Supremes felt compelled to issue the code.

Left-wing billionaire-backed publications have concocted frivolous claims against the indomitable Justice Clarence Thomas, and his similarly unbowed colleague Justice Samuel Alito – that the justices are corrupted and compromised for having taken nefarious trips with wealthy friends, or delivered verboten speeches before groups the left loathes. 

The media and Democrat legislators have parroted these unfounded allegations to foment a moral panic over ethics. 

This info op persists even though it’s been debunked at every turn. It comes from a party led by a man facing an impeachment inquiry over reams of evidence he sold out the country to our worst adversaries. No matter. For the Court’s critics, traveling with affluent friends or affiliating with the wrong charities must be made hanging offenses as a smokescreen for the real underlying offense: Sitting on the Court while conservative.

The Democrat majority on the Senate Judiciary Committee has been particularly hysterical. Its leaders have savaged the Court with hyperbolic statements, held sham “ethics” hearings and even submitted amicus briefs. They recently nearly subpoenaed Justice Thomas’s friend, real estate developer Harlan Crow, and prominent conservative judicial activist Leonard Leo. The purpose was to harass and bully them. Most relevant, the Democrat senators have long clamored for a “code of conduct.”

These efforts build on Borking; the high-tech lynching of Justice Thomas and attacks on his wife; the caper to cast Justice Kavanaugh as a monster; President Biden’s commission to “reform” the Court; and then the Dobbs leak, leading to mobs outside justices’ homes, and an assassination plot against Justice Kavanaugh.

The purposes of these efforts are to: Make conservatives recuse themselves from pivotal cases; intimidate wobbly justices into going along with progressives on those cases; attack the integrity of the Court so it subordinates itself to and submits to Democrat legislators and activists; or, if all else fails, spark a nullification crisis. 

On its face, the Supreme Court’s code of conduct is unobjectionable. Its terms are reasonable. In it, the justices emphasize Canon 3B, which deals with recusal, likely to neutralize Democrats’ increasingly loud calls for conservative justices to beg off of certain cases.

There are three problems with releasing the document though: First, merely by issuing it, the Court may be seen to be legitimizing the illegitimate attacks of the Court’s critics. Second, it shows those critics that the Court will blink in the face of political pressure, incentivizing further attacks. Third now the written terms will surely be hung around conservatives’ necks, only intensifying the delegitimization effort.

After the Court issued the code, Senate Judiciary Committee Chairman Dick Durbin said that “We have to decide whether or not…[it] is appropriate in disclosure and enforcement.”

Senate Majority Leader Chuck Schumer (D-N.Y.) predictably too called the lack of an enforcement mechanism a “glaring omission.”

The message is clear: Their appetite to control the Court will never be sated. Smelling blood in the water, Democrats’ will only escalate their assault on the Court.

It’s understandable the Supremes wouldn’t want to remain silent in the face of unending attacks, lest the silence be heard as an admission of guilt. 

But caving to the demands of those who want to destroy the Court will only incentivize great aggression – especially going into an election year when Democrats are simultaneously waging a lawfare campaign against the GOP presidential frontrunner, likely to lead to appeals that could end up before the Court.

Those who believe it imperative to protect the Court as an institution ought to be as stalwart in defending it as its foes are in trying to destroy it.

May 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.

Either way, having made the initial error of conceding to those who would obliterate the Court, it must refuse to budge even a single inch further.

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