Over the past few days, I have been asked about Democratic efforts to impose a new ethics code on the justices, particularly from Senator Sheldon Whitehouse, who co-led Tuesday’s Senate Judiciary Committee hearing on “Supreme Court Ethics Reform” that I covered here. Whitehouse has introduced a bill, S. 359, that among other things would institute a process by which people could submit to a panel of appeals-court judges complaints about Supreme Court justices believed to be ethically compromised. The complaint could be based on a specific statutory or regulatory provision or simply allege “conduct that undermines the integrity of the Supreme Court.”
Such a system would bring chaos to the Court. If implemented, we could expect that on a regular basis, there would be a first round of litigation just about recusals. Thomas Dupree, a Republican witness at Tuesday’s hearing who had served as principal deputy attorney general under President George W. Bush and Attorney General Michael Mukasey, made this point in his testimony:
Adopting these measures would open the door to a tidal wave of disqualification motions in virtually every important case. Round One in all the big-ticket constitutional cases would be litigation over which Justices are eligible to decide the case, and which Justices must be disqualified. Here too, it is hard to imagine anything more corrosive to public faith in the Supreme Court than what would become routine volleys of motions alleging that various Justices are ethically compromised and must recuse because they accepted a meal from someone distantly connected to a case.
Packing the Court, the tactic of adding justices until the aggrieved side can ensure that they will get favorable decisions, was an ignominious tactic that backfired when Franklin D. Roosevelt attempted it unsuccessfully in 1937. It more recently returned as a liberal tactic between the 2020 Democratic presidential primary election season and Senator Ed Markey’s introduction of legislation in the last Congress to add four justices to the Supreme Court.
The spectacle of the Whitehouse bill in action would amount to a mirror image of court-packing. And the bill’s 21 cosponsors to date include Markey, Bernie Sanders, and most of Whitehouse’s Democratic colleagues on the Judiciary Committee. Instead of adding justices to the Court—an objective that so far has failed to gain sufficient traction to pass—the new tactic is to subtract justices in key cases so that the Left can achieve the same result of getting its political agenda enacted through the federal judiciary. Both tactics amount to intimidation, a brazen power play that should be rejected by anyone truly concerned about the Court as an institution.