Last week the Supreme Court announced that it adopted a formal code of ethics, endorsed by all nine Justices. In this episode, Professor Daniel Epps of Washington University School of Law and Professor Stephen Vladeck of the University of Texas School of Law join Jeffrey Rosen to break down the Supreme Court ethics code and explore questions about how it will be applied and enforced.
Please subscribe to We the People and Live at the National Constitution CenteronApple PodcastsSpotifyor your favorite podcast app.
Today’s episode was produced by Lana Ulrich, Bill Pollock, and Samson Mostashari. It was engineered by Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
Daniel Epps is a professor at Washington University School of Law. He has particular expertise in Supreme Court reform, where his work is influencing major policy debates, and has co-written with Ganesh Sitaraman several articles examining various proposals to restructure the Supreme Court. He currently co-hosts Divided Argument with Professor William Baude, a podcast that analyzes the Court’s work.
Stephen Vladeck holds the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law. He is the co-host, together with Professor Bobby Chesney, of the National Security Law Podcastand is CNN’s Supreme Court analyst. He is editor and author of One First, a weekly newsletter about the Supreme Court, as well as the author of the New York Times bestselling book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic
Jeffrey Rosenis the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- Supreme Court of the United States,Statement of the Court Regarding the Code of Conduct, Nov. 13, 2023
- Daniel Epps and Will Baude, “Easy Win,” Divided Argument (podcast)
- Steve Vladeck,“One and a Half Cheers for the Supreme Court,”One First substack, Nov. 16, 2023
- Steve Vladeck,“Opinion: The Supreme Court code of conduct misses this big thing,” CNN, Nov. 14, 2023
- Steve Vladeck,“An Article III Inspector-General,” One First substack, Oct. 19, 2023
- Epps, Daniel and Trammell, Alan M.,“The False Promise of Jurisdiction Stripping” (March 8, 2023). Columbia Law Review, Forthcoming
Excerpt from Interview: Stephen Vladeck discusses definitions of familial relationships and how allegations against Justice Thomas may have been handled differently had he been an appellate judge.
Jeffrey Rosen: Steve, the section that Dan flagged is Section D financial activities. D3, a justice should comply with restrictions on acceptance of gift and prohibition on solicitation of gifts set forth in the judicial conference regulations on gifts now in effect. And then, there is some further definition of what a member of a justices family means. Here it means any relative of a justice by blood, adoption or marriage or any person treated as a justice as a member of the justices' family. Do those definitions of familial relationships change the context? And how would these allegations be dealt with if Justice Thomas were an appellate judge?
Stephen Vladeck: I don't know that they actually change any of the episodes that have been reported. I think you can make a pretty good argument that absolutely none of the stories that have been reported would clearly fall on the wrong side of these new rules any more than they already did. Right? That it doesn't change the status quo.
If it were a lower court judge, I mean we have a process and part of the problem, Jeff, let me take a half a step back, is much of what's happening publicly is, ProPublica runs a story and folks who might already be somewhat skeptical of the court or some of the justices, say, "Oh, my gosh, here's another example of corruption on the court." And folks who are defensive of those justices or the court rush to defend them by, sort of conjuring arguments of varying degrees of persuasiveness about why nothing wrong happened.
And Jeff, that's where it ends right? That the debate is hashed out in the court of public opinion and there's no arbiter of who's right. And it seems to me that that problem persists even under this new code.
First, right, even the provision you read says should not shall suggesting that it's not even a mandate, it's just a sort of a norm, like that we should do this. But second, Jeff, who's the person who's going to decide the next time there's one of these cases, whether, in fact, a family member received improper consideration, right? Whether the person at issue falls within the definition of family member, which is to some degree as you read subjective.
And the answer, at least under the current system, is the justices by themselves. That's a contrast to the lower courts where the lower courts, there is a process in place where if a complaint is filed, there's a mechanism by which other judges can review the complaint, can act on the complaint, can arbitrate whether in fact the complaint of conduct transgress the relevant rules.
That's not possible for the justices. I am fairly critical of the court and agree that the Constitution forbids putting someone else above the court when it comes to judging the justices' behavior. But there's other ways to get at solving that problem.
The code that the justices put out last week is just mum on the subject that even in the future, we're going to have the same interpretive disputes where the justice does whatever the justice is going to do. The justices' defenders try to rationalize it, and the justices critics say, "No, this violates the rules." And the conversation just repeats in this permanent feedback loop.
Excerpt from Interview: Daniel Epps discusses possible consequences of the current polarized climate of politics.
Jeffrey Rosen: Dan, what does the history of Congress's efforts to influence the court say now that we're back in one of the most polarized times since before the Civil War? For much of the 19th century as Steve suggested there were open attempts by Congress to control the court, eliminating its term in the Jeffersonian era, expanding the number of seats leading up to the Civil War. Things really didn't settle into a nonpartisan harmony until after the Taft reforms of the 1920s and the defeat of FDR's court packing plan. Now that things are really polarized, might we see a return to that kind of tug of war and is that good or not?
Daniel Epps: …One of the things, our takeaways is this strategy is fraught, right? The court can push back on it, but doing it and also threatening to do it does send a signal, right? It tells the court we're watching you and you have gotten a little bit out of line with a big chunk of public opinion. and you know, some of them care about that, some of them don't.
I don't think that they should just take an opinion poll and that should decide every case. But I do think that if they're doing stuff that is extremely unpopular very controversial very divisive that might be a place where we want courts to step back from the brink a little bit. And there's a ton of historical examples of them doing that. Sort of seeing that they're facing a lot of the examples that Steve talked about in your question. Our places where the court was maybe gonna do something and Congress was like here's what we're gonna do or did something very aggressive and the court maybe stepped back from the brink.
I think we’re going to see that? We're already seeing that. We're not seeing that in terms of Congress actually going out and passing jurisdiction strapped statutes. We're seeing that in terms of members of Congress proposing things that would have been radical and unthinkable. I don't know, maybe five years ago, six, seven years ago. Certainly a decade ago. We're seeing actual senators and members of the House of Representatives coming forward with court packing bills…
Now one other thing though to say about that long run of historical episodes, what we do also see historically is the court over time developing more and more power and prestige, right? The court now is pretty unrecognizable from the court 200 plus years ago where they didn't have a building. They were just sitting in the basement of Congress. And they were not the court now declares federal statute is unconstitutional all the time.
They really have kind of put themselves in this position of, you know, we're the teachers and we're checking Congress's homework. That's newer in the long run of history. That something the court has kind of earned over a long time. And maybe we're gonna start seeing the old paradigm emerge, which is other branches saying, "You know, no. That's not what you are. You're co-equals but we have a big role in interpreting the Constitution. You're not right about everything." And maybe, over time we will start to see a little more of that equilibrium return.
Full Transcript
View Transcript (PDF)
Stay Connected and Learn More
Questions or comments about the show? Email us at [email protected].
Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr.
Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly.
