As soon as I heard yesterday that SCOTUS had released a fake “code of ethics,” …
…I told my colleagues at C&L, “I hope Joy-Ann Reid is gonna have Elie Mystal on this afternoon.”
Got my wish.
JOY ANN REID, HOST: Further proof that sunlight is the best disintectant, earlier today the Supreme Court announced for the first time in its 200-plus year history, it has adopted a code of ethics… well, sort of. The fourteen-page document broadly lays out five canons of conduct on issues such as when justices should recuse themselves and what kind of outside activities they can engage in. However, it fails to mention how it will be enforced or who will enforce it. This is a clear effort by the high court to short-circuit an increasing pressure campaign from Senate Democrats to impose a binding ethics code for justices, especially after reports from ProPublica that Clarence Thomas and Samuel Alito did not disclose free trips from wealthy right-wing donors. That was turned up last week when the Senate Judiciary Committee debated issuing subpoenas to one of those donors, Harlan Crow, as well as Leonard Leo. Joining me is Elie Mystal, justice correspondent for The Nation. How seriously should we take this ethics code? Let me read a little before I let you answer that. It says here, the absence of a code, however, has led in recent years to the misunderstanding that the justices of the court, unlike all other justices in the country, regard themselves unrestricted by the ethics rules.
ELIE MYSTAL, THE NATION: Misunderstanding. So we were confused about whether or not Supreme Court justices can have their mother’s houses paid for by wealthy Republican donors. Oh, thank you, John Roberts, for elucidating that in fact they can. Because that’s the problem with “the ethics code” — there are no ethics involved in the code. There is nothing in these 14 pages of weak sauce that restrains people like Clarence Thomas from doing everything that Clarence Thomas did. Nothing about not taking gifts from wealthy donors or taking trips or taking free vacations or taking free houses. Nothing in there is unethical, according to the Supreme Court.
So I would call this ethics reform toothless, but that’s a bit of an insult to people who have dentures because it’s weaker even than that.
This ethics code is best understood as only Clarence Thomas can decide whether or not Clarence Thomas violated Clarence Thomas’ rules. It’s like Ricky Henderson wrote this for himself. And so that is the setup. The idea that this weak sauce ethics rules, so-called ethics rules, there’s no enforcement mechanism, as you pointed out. It’s still up to the individual justices to decide whether or not they should recuse, no third-party adjudication about any of these potential ethics violations. So what is it for? And Joy, you hit it exactly right. This has an audience of exactly one: Senate Judiciary chairman Dick Durbin. This is John Roberts’ attempt to push Durbin off of his investigation, an investigation that, by the way, the Supreme Court justices are still refusing to show up and testify about. It’s to push him off their investigation and to give ranking Republican member Lindsey Graham something else to scream and cry about when he tries to justify the unethical behavior of the Supreme Court.
REID: Let me read a little bit of it. This is their code. The justice may accept reasonable compensation for expenses from activities at the course source of the payment doesn’t appear improper. It should be for reasonable travel and costs. But the justice’s spouse or relative. For some time, all justices have attempted to comply with the statute governing financial disclosure and the undersigned members of the court individually confirm that commitment. The idea they have attempted to comply with the compensation reimbursement piece, it’s really a suggestion.
MYSTAL: It’s captain barbosa from pirates of the Caribbean. The code is more of the guideline. That’s what we’re talking about here. This idea they have attempted to comply, well, you done failed. You done failed at the compliance part. So what have you done to make sure you will comply going forward? I have done the Google search. I have seen a lot of people do this. The code says in 14 pages uses the words “justices should,” the word “should,” 53 times. It uses the word justices “shall,” shall do something, zero times. So again, this is not worth the paper it is printed on. It is like erecting a dam with a chainlink fence. It’s a giant waste of time for everybody.
There’s also one more thing I think is worth pointing out. It’s also incredibly permissive of the real kind of graft and corruption the Supreme Court likes to do, which is to appear at Leonard Leo’s Federalist Society events. Just last week, at the Federalist Society’s annual gala, four of the conservatives showed up. And the featured speaker was Amy Coney Barrett. This ethics code literally proscribes contractually how Amy Coney Barrett is allowed to keep doing that by some legal mumbo jumbo redefining what a fund-raiser is, so that the Federalist Society’s annual gala doesn’t count as a fund-raiser, according to these rules. They’re useless, Dick Durbin should ignore them and press on with his investigation.
REID: I will note for the audience that they’re doing this why the Federalist Society is also writing up ideas for how Donald Trump could essentially rule us as a dictator. And one of the sort of guardrails against him becoming a dictator is supposed to be this exact same Supreme Court that Leonard Leo owns. Fabulous. Elie Mystal, all working out just perfectly. Thank you very much.