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Wednesday, July 13, 2016

The Code of Conduct for United States Judges does not apply to U.S. Supreme Court Justices -- why?

Canon 5: A Judge Should Refrain from Political Activity.
Canon 5(a)(2): A judge should not ... make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office. 

It is not uncommon to treat those at the apex of authority somewhat differently from others—even to exempt them from burdens which apply to others. Sometimes this is a reflection of insiders protecting their own. But, it is also frequently a reflection of deep wisdom: the kind that comes with practical experience in the world and its affairs. 

The federal Code of Judicial Conduct applies to all Article III judges—except members of the Supreme Court of the United States. Is that because Supreme Court justices do not need ethics? No. Is it because they are better human beings, citizens, and jurists than their lower court colleagues? No. 

Consider recusal when judicial bias is asserted. Each Supreme Court Justice must decide to recuse on his or her own. If an appeal to the full Court were permitted, then the minority’s ability to exercise the judicial power of the United States would exist only at the sufferance of the majority. If an appeal were permitted to non-members, then you will have effectively transferred responsibility from the Supreme Court to their minders. And who will mind the ethics of those minding the Supreme Court? 

Quis custodiet ipsos custodies? 

The thoughtless "reformers" who propose as remedy making individual Supreme Court Justices answerable to an outside authority in the regular course of litigation are proposing a cure far, far worse than the disease. See EDMUND BURKE, REFLECTIONS ON THE REVOLUTION IN FRANCE 210 (London, J. Dodsley 1790) ("A certain quantum of power must always exist in the community, in some hands, and under some appellation." (original emphasis removed, emphasis added)). See generally Seth Barrett Tillman, Closing Statement, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U. L. Rev. Colloquy 180, 203 (2013).

Of course, there is always the extraordinary political remedy of impeachment, or perhaps admonishment by a resolution of Congress. 


Twitter: (@SethBTillman) 

Seth Barrett Tillman, The Casual Bigotry of Xeni Jardin and Jardin’s Many Followers, The New Reform Club (July 6, 2016, 4:17 AM)

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