Quis Custodiet Ipsos Custodes?

[ Posted Thursday, July 20th, 2023 – 15:34 UTC ]

Almost 2,000 years ago, the Roman poet Juvenal asked the question: "Quis custodiet ipsos custodes?" which is usually translated into English as: "Who will watch the watchmen?" When you give a group of people supreme power over others, how do you keep that power in check? It seems a fitting title today, as the Senate Judiciary Committee just passed (on a party-line vote) a bill which would require the Supreme Court to adopt a binding code of ethics.

This should be a nonpartisan issue, but Senate Republicans are aghast at the concept of holding the highest court in the land to any set of standards, mostly because they like the composition of the current court and are thus loath to be seen punishing them in any way. But if the shoe were on the other foot -- if the court was 6-3 liberal and several of the liberal justices had been caught accepting lavish gifts from leftist donors -- you can bet the Republicans would be on board with the idea.

Because Republicans are opposed, the bill is likely going nowhere in the full Senate. The Washington Post outlined today where things now stand:

Legislation requiring the Supreme Court's nine justices to adopt a binding code of ethics was adopted by the Senate Judiciary Committee on Thursday, but the proposal faces a slim chance of passing in the narrowly divided Senate, where Republicans have promised to torpedo the bill.

. . .

"We are here because the highest court in the land has the lowest standards of ethics anywhere in the federal government, and justices have exhibited much improper behavior," said Sen. Sheldon Whitehouse (D-R.I.), the chairman of the subcommittee that oversees the federal courts and the lead sponsor of the bill. "This cannot go on. Defending this behavior defends the indefensible."

In addition to mandating the creation of an ethics code specific to the nine justices, proposals in the ethics bill include requiring the Supreme Court to strengthen its recusal requirements, bringing the court's hospitality and financial disclosure rules in line with those of Congress, setting transparency guidelines for amicus briefs filed at the court and allowing the public to submit ethics complaints against the justices.

But despite broad Democratic support, Whitehouse's Supreme Court ethics bill appears to be doomed in the full Senate. Committee Republicans said during the meeting that they would vote against the bill if Senate Majority Leader Charles E. Schumer (D-N.Y.) brought it up for a floor vote.

. . .

Meanwhile, Schumer, who is one of the bill's 25 co-sponsors, has not committed to putting the bill on the Senate floor, and it is unclear whether all 48 Democratic senators as well as the three independents who caucus with Democrats would support the bill.

My first reaction to reading all of this is to laugh at anyone who had any previous fears that Democrats would "pack the court" by adding new justices. That would be a radical step to take, but if the Democrats can't even stand firm on tightening up ethics rules for the high court then the notion that they could somehow band together to change the number of justices on that court is just laughable.

Rather than take that radical route, Senator Whitehouse has instead been pushing -- for 11 years now -- to strengthen the Supreme Court's ethical standards. Essentially, they have no hard standards now. They have minimal financial reporting requirements and nothing more than long-standing tradition for everything else. They and they alone decide whether they should recuse themselves from any case, and such decisions are unreviewable and final. All the new bill would really require is that they codify all their ethical guidelines rather than leaving them as unwritten rules. The Supreme Court itself would write the language of these rules, rather than having a specific code of ethics imposed upon them by Congress.

As I said, this really shouldn't be controversial or partisan in any way. As Whitehouse pointed out: "the highest court in the land has the lowest standards of ethics anywhere in the federal government, and justices have exhibited much improper behavior." Written rules are obviously necessary, since not all the justices have been strictly following the unwritten traditions. Or the traditions aren't strong enough to begin with -- take your choice.

The Supreme Court is the highest court in the land (it's right there, in the name). They are the final word on all legal issues. The judicial system has adopted ethical rules for all other federal judges below the level of the high court, but not for the Supremes themselves. This is, quite literally, a travesty of justice.

The problem is not exactly a new one. Whenever governments assign powers that are supreme, there is the possibility that the all-too-human people who get to wield such powers can do so in corrupt ways. Placing a check on supreme powers by some other person or group means the powers are no longer supreme anymore. American government has struggled with such questions before, with our "co-equal" three branches of government. When and how can the legislature keep the executive in check (and vice-versa)? How can the Justice Department be part of the executive branch and yet still retain independence? These are just a few fundamental examples of the problem Juvenal identified two millennia ago.

In this case, the legislature is contemplating forcing the highest court in the judicial branch to follow the same ethics rules that all its other judges do. If passed, the president will have to sign off on the idea. If the high court somehow decides to ignore the new law -- by declaring it an unconstitutional power grab, most likely -- then they will have asserted their own supremacy beyond any possible checks and balances. Which is a dangerous thing, in our system of government.

If this effort were backed by an overwhelming and bipartisan majority in both houses of Congress, it would be tougher for the court to ignore it. But because pretty much everything about the Supreme Court is now about politics, Republicans are against the idea of the highest judges in the land having to follow the same ethical rules as all the other federal judges. Schumer might not even bring it up for a full floor vote because he's not even sure that all the Democrats are on board. And even if they do somehow pass the bill in the Senate, it will only head over to the House of Representatives, where it will die.

This is a pretty sad state of affairs. Which doesn't exactly bode well for the future. We're going to continue our current system where the watchmen are content to watch over themselves, with absolutely nothing to stop them from various forms of judicial corruption. Quis custodiet ipsos custodes? No one. (In Latin: Nemo.)

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


4 Comments on “Quis Custodiet Ipsos Custodes?

  1. [1] 
    John M from Ct. wrote:

    The justices' ethics violations are simply one aspect of the larger problem with this Court: that it is packed with hard-core right wing ideologues hand-picked by the Federalist Society. Suppose Clarence Thomas accurately reported his junkets with his rich friends - or suppose he actually refused to accept their favors because of the appearance of influence, following the Senate Committee's new ethics code. Would that change Thomas's judgments and rulings on the cases that appear before him and his colleagues? It's impossible to imagine he would become a more objective or legally-minded Justice just because he was forced to be more ethical regarding favors from high-placed conservative billionaires.
    I agree that it seems unlikely the current Senate or any Senate in the near future will address the actual Supreme Court problem, whether by packing it or imposing term limits or restricting its jurisdiction.
    But that problem is what it is: not the Court's ethics, but the Court's politics.

    Who guards the guardians? Gee, why it's the U.S. Congress, which writes the laws that determine how the Supreme Court is manned, organized, and empowered. That the Congress isn't doing anything about the guardians isn't surprising, given our political gridlock, but the question has an answer and it's not nemo.

  2. [2] 
    BashiBazouk wrote:

    The democrats should make the 2024 election about ethics. It’s simple and covers everything from the supremes to Trump and DeSantis and much of the republican house, all the way to right leaning CEOs like Musk and Spez (Reddit). Plus it’s something the republicans used to stand for….

  3. [3] 
    MtnCaddy wrote:

    Did something happen and the Republicans lost the ability to simply filibuster it to keep it off the floor?

  4. [4] 
    MtnCaddy wrote:

    I hope this gridlock breaks up. Trump will get killed by Joe in the rematch (spoiler: Repugs can’t help themselves and No Labels and Manchin will not matter) and I’d still say Joe has proved a more transformative President than I ever dreamed he’d be, maybe a second term Biden feels free to leave an even greater impact on America.

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