(Official Washington Examiner editorial, November, 17) Now that a unanimous Supreme Court has issued a code of conduct for itself, its leftist critics should stop jawboning against the bench as though it were a haven for corruption.
The Left’s instantaneous complaint that the code, released on Nov. 13, lacks “enforcement mechanisms” is a cynical ploy they would drop the moment the Left retook a high court majority. Its smears against originalist and textualist judges before the adoption of the code stemmed entirely from political motives rather than sincere concerns about ethics.
“The absence of one Justice,” the commentary explains, “risks the affirmance of a lower court decision by an evenly divided court — potentially preventing the court from providing a uniform national rule of decision on an important issue.”
Unless a justice’s conflict of interest is stark, “the time-honored rule of necessity” prevails. In other words, the need for a final arbiter is paramount. Justices who survive the confirmation gantlet must be accorded a basic presumption of propriety, as the Constitution affords them authority independent of the other two branches of government.
That latter consideration explains why the Left’s calls for “enforcement mechanisms” are so misguided or malicious. The Constitution puts the “Supreme” in the high court’s title for good reason: There is no good way that inferior court officials can be allowed to judge the nation’s final judicial arbiters. Except in extreme circumstances, the “separation of powers” means that justices should be immune from political motivations to which elected branches of government respond.
Any independent “enforcement mechanism” with teeth would play into the hands of those who want to attack individual justices for political reasons rather than for legitimate ethical concerns. That’s why even a senior fellow of the liberal Brookings Institution, the highly credentialed Russell Wheeler, wrote that the lack of major enforcement teeth is “a necessary imperfection,” and that almost every proposal to fix it “would likely create more problems than they would solve.”…. [The full editorial is at this link.]
