Opinion: The Supreme Court code of conduct misses this big thing

Opinion by Stephen I. Vladeck

(CNN) — Rules are just empty words if there’s no hope they’ll be followed. Supreme Court Justice Robert Jackson once wrote that “if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures than under our substantive law enforced by Soviet procedural practices.” Jackson’s point, coming at the height of the Cold War, was that rules don’t matter all that much without some faith that they’ll be applied and enforced in a fair, nonarbitrary way.

That mantra was ringing in my head as I reviewed the code of conduct voluntarily adopted by the Supreme Court on Monday, the first such formal code to govern the justices. It contains 14 pages of ethics principles and commentary to which the justices say they will now adhere. This move comes after months of mounting public pressure in response to media reports documenting troubling (and previously undisclosed) financial relationships involving Justices Clarence Thomas and Samuel Alito and wealthy conservative benefactors. (The justices have pushed back on or disputed some of these reports.)

We can debate (and folks are debating) the substance of these new (or not-so-new) rules; the real question is how we, the public, are supposed to have faith that they’ll be followed. In adopting these rules, the Supreme Court didn’t address that issue at all.

Most people enforce rules with carrots or sticks — incentives for following the rules or penalties for breaking them. In this case, though, the Constitution gets in the way of either. Article III (the one about the courts) demands that there be “one supreme Court” (emphasis added), which the justices have long interpreted, not unreasonably, to mean that no one else can sit in direct judgment of their rulings or their behavior (except, in extreme cases, Congress through its power to impeach sitting justices).

Thus, the way that we typically enforce ethics rules and financial disclosure requirements against lower court judges — a body known as the Judicial Conference of the United States oversees them — won’t work for the justices. Perhaps that explains why some conservative commentators view the matter now as being closed despite the new ethics code not having an enforcement mechanism: The court has done all that we can reasonably expect it to have done, and no one else has any power to do anything further.

But even if the Constitution prohibits a direct enforcement mechanism, Congress has, for most of our history, used an array of other powers as sideways leverage against the court — not-so-subtle reminders that Congress can “punish” the court in other ways.

Among other things, Congress controls (almost all of) the court’s budget — a power it has used historically not just to encourage changes in institutional behaviors, but even to influence the timing of individual justices’ retirements. (Pensions are powerful things.) Congress controls when and where the court sits; until 1935, the court sat in the Capitol — a powerful reminder of which branch was beholden to which.

And Congress made the court’s entire 1802 term disappear in a shot across the bow of Chief Justice John Marshall while the justices considered the constitutionality of major legislation passed by the newly elected Democratic-Republicans. Congress has also regularly exercised leverage over the court’s docket; until 1891, all of the court’s jurisdiction was mandatory (meaning that the justices had to hear any appeal Congress told it to hear). That the court’s docket today is almost entirely discretionary is a policy choice by the legislature — one that could be reversed if, again, Congress was looking for sticks. In the past, Congress has even stopped the court from resolving individual cases, including an especially significant 1868 dispute over the constitutionality of the military government in the South during Reconstruction.

This is where the conversation about the justices’ behavior off the bench should go now. What’s needed is more than substantive rules adopted by the justices; even if the new rules were perfect (and they’re not), it’s not obvious why justices who in the past have flouted financial disclosure requirements would all of a sudden go out of their way to over-enforce these new rules against themselves.

Instead, what’s needed is some mechanism for obtaining the justices’ compliance with the rules. One possibility is the creation of an Article III inspector general. It’s a position that has long been proposed for lower federal courts but that could also have at least a modicum of authority to monitor the justices’ behavior as well.

As I’ve suggested before, even if such an officer couldn’t directly punish justices for violating the relevant rules, Congress unquestionably could invest that position with the power to investigate and report upon compliance with those rules — reports that would provide a strong incentive for justices to adhere to the rules, lest they end up on some official, undismissable list (rather than just in media reports) of justices who have misbehaved; and, in extreme cases, provide a basis for the impeachment of justices who continually cross the line.

Instead of every new media report about a justice’s personal behavior dividing us into predictable ideological camps, now there would be an ostensibly neutral ombudsperson whose reports could build a record, one way or the other, from which to assess whether and to what extent an individual justice, or the court as a whole, is behaving badly.

An Article III inspector general is no panacea. But it’s the least-worst alternative to a problem that the Constitution necessarily creates: how to have an independent Supreme Court that is nevertheless at least loosely accountable to the political branches.

Accountability and independence aren’t mutually exclusive — something the justices are tacitly conceding by agreeing for the first time to formally adopt a code of conduct. But saying “trust us” isn’t, and shouldn’t be, enough. To quote the old Russian proverb (as appropriated by President Ronald Reagan), “Trust, but verify.”

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