May 2, 2023

A Supreme Court ethics bill.

A Supreme Court ethics bill.
Chief Justice John Roberts is under increased pressure to create a code of conduct for the court. Image: Wikicommons / LawAnalyzer40526

Plus, a question about Trump's children acting like Biden's children.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 13 minutes.

The Supreme Court is under calls for increased scrutiny and a new code of conduct. Plus, a question about Trump's children acting like Biden's children.

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Typo alert.

Yesterday, we mentioned a new piece of Colorado gun legislation that included a "minimum wage" for purchases. As many readers rightly deduced, that was minimum age, not wage, though my inadvertent policy idea seemed somewhat popular. Thanks for the eagle eyes.

Quick hits.

  1. Treasury Secretary Janet Yellen warned we could breach the debt ceiling by June 1. Shortly after the warning, President Biden called House Speaker Kevin McCarthy to set up a meeting about Republicans' debt ceiling bill. (The call)
  2. Sen. Ben Cardin (D-MD) says he will retire in 2024 (The resignation), and Gov. Jay Inslee (D-WA) said he won't seek re-election for a fourth term. (The announcement)
  3. State Rep. Zooey Zephyr (D) is suing Montana and its House speaker after being barred from House floor debates. (The lawsuit)
  4. Geoffrey Hinton, who pioneered the development of artificial intelligence, retired from his position at Google and spoke about the dangers of his own creations. (The interview)
  5. The board appointed by Gov. Ron DeSantis (R-FL) voted to countersue Disney World after the company filed a lawsuit alleging DeSantis was targeting them and infringing on their constitutional rights. (The countersuit)

Today's topic.

Supreme Court ethics. In the last few weeks, calls for a Supreme Court code of conduct have grown louder. On Wednesday, Senators Angus King (I-ME) and Lisa Murkowski (R-AK) introduced legislation that would require the court to appoint an official to examine conflicts and public complaints. The bill, the Supreme Court Code of Conduct Act, was hailed as bipartisan because King caucuses with Democrats.

The bill is the latest legislative effort to try to get the court to better police itself and increase transparency. All other federal courts operate under a central ethics code administered by the Judicial Conference of the United States, which notes that “A judge should avoid impropriety and the appearance of impropriety in all activities.” Members of the Court have argued they follow the same standards that apply to other federal judges, though the lack of a binding code has been a point of contention.

Recent reports, including a ProPublica piece on Justice Clarence Thomas receiving hundreds of thousands of dollars of free gifts and travel from Texas billionaire Harlan Crow, have intensified focus on the lack of a code of conduct. Last week, Politico also reported that Justice Neil M. Gorsuch had sold a vacation property to the chief of a major law firm that has frequently had cases before the court. Justice Gorsuch was accused of leaving the field in the disclosure form naming the identity of the buyer blank.

Subsequent reporting, however, has called into question whether the sale would constitute an ethics violation, even under stricter conditions.

Senate Judiciary Chairman Dick Durbin (D-IL) asked Chief Justice John Roberts to testify on the court’s ethics rules, but Roberts declined, telling Durbin that it is "exceedingly rare" for a chief justice to give such testimony and citing the importance of preserving judicial independence.

King and Murkowski's bill would require the court to establish a code of conduct in the next year, publish the rules online, and designate an official who tracks public complaints and violations. The bill would also require a way for people to report potential violations, and those violations would be made public online.

“Americans have made clear their concerns with the transparency — or lack thereof — coming from the Supreme Court and its justices,” Murkowski said. “It is critical the public has full faith that their institutions are functioning, including the judicial branch.”

Other proposals have also popped up in recent weeks. Senator Sheldon Whitehouse (D-RI) advanced a bill that would require the court to adopt the same ethics rules as congress, and Sen. Chris Murphy (D-CT) has proposed legislation that would allow the Judicial Conference of the United States to create a specific ethics code for the court.

Recent polling suggests confidence in the Supreme Court is at an all-time low, with just 25% of Americans saying they have a great deal or a lot of trust in the Supreme Court.

Today, we are going to break down some arguments about a potential ethics code from the left and right. Then my take.

What the left is saying.

  • Many on the left support a code of conduct, and argue that the Murkowski-King bill is the bare minimum.
  • Some say it’s wrong that the Supreme Court is subject to less formal scrutiny than any other institution.
  • Others took the opportunity to Republicans for refusing to address the damaging reporting on Supreme Court justice Clarence Thomas.

In Bloomberg, the editorial board said "few institutions are subject to as little formal scrutiny as the Supreme Court."

"In theory, members of the court are subject to the same financial disclosure rules as other high-level federal officials. Yet with no one empowered to enforce those rules but themselves, the justices have all too often seemed to be above the law. The situation increasingly feels untenable," the board said. Take Harlan Crow's relationship with Justice Clarence Thomas, who is "hardly the only justice" to engage in behavior that is, at best, ethically ambiguous.

"Justices across the ideological spectrum have been accused of failing to make pertinent financial disclosures, accepting dubious blandishments, rejecting well-founded calls for recusal, engaging in questionable political and financial activity, and much else that would raise the eyebrows of any reasonable observer," the editors said. All other courts have a central ethics code, and it's time for Chief Justice Roberts to "invoke his authority... to establish a formal ethics code specific to the high court."

In HuffPost, Jennifer Bendery criticized Republicans who were "fine" with there being no formal code of ethics.

Democrats asked Chief Justice Roberts to come up with a formal code of conduct for the court, and if he won't, they "have a bill that will." But "that's a stark contrast to Republicans, who have almost unanimously retreated into silence or scoffed at the idea that Congress should do anything to serve as a check on justices’ behavior. There’s only one GOP senator backing any ethics reforms to the court: Lisa Murkowski."

HuffPost asked GOP senators what they think of Murkowski's bill. "The question isn’t just pertinent because Thomas has been accepting luxury trips almost every year for more than 20 years from billionaire Harlan Crow and not disclosing them. Or because Thomas sold his ancestral home to that billionaire and didn’t disclose it. Or because that billionaire has had financial interests before the court the entire time. Or because Neil Gorsuch failed to disclose that he sold property for more than $1 million to the chief executive of a law firm that routinely has business before the court." It's pertinent because "every federal judge in the country has been governed by a written code of conduct since 1973. Except the nine justices on the nation’s highest court."

In The Washington Post, Greg Sargent said "finally, a bipartisan response" emerges.

Congress has "abdicated its oversight role when it comes to the courts," which has led some court watchers to "believe this neglect has helped encourage Supreme Court justices such as Clarence Thomas to disregard any sense of propriety." The new King-Murkowski bill "poses a fresh test" to lawmakers: "will they find the will to do even cursory oversight, if only to restore public confidence in our highest judicial institution as it careens from one legitimacy crisis to the next?"

This bill "would require the court to impose an ethical code upon itself. Congress would not determine what that code would be or levy punishments; it would merely require that the court engage in meaningful self-policing and that it be visible to the public," Sargent said. The proposal seems designed to "circumvent" the objection that Congress imposing rules on the court would violate the Constitution's separation of powers, and it "would be hard to argue" this bill crosses that threshold. If anything, "one could argue that this wouldn’t go far enough."

What the right is saying.

  • Many on the right oppose the legislation, saying Democrats are trying to undermine the court’s independence.
  • Some say such oversight would do more harm than good, blurring the separation of powers between the branches of government.
  • Others argue there are already rules and procedures in place to punish justices if necessary.

In The Washington Post, Jason Willick said this legislation "would do more harm than good."

This "bipartisan scheme" would "undermine the separation of powers and fuel the ongoing campaign to discredit the judiciary." The plan amounts to "a new internal compliance bureaucracy" foisted on the Court by Congress. The court is already "politically accountable" as any justice can be impeached with a majority vote in the House and removed with a two-thirds vote in the Senate. While federal prosecutorial guidelines say a president can't face indictment, there's "no such limit" on protecting justices.

"In other words, justices are subject to corruption laws like any other public official, and they’re subject to removal from their posts in the only way the Constitution allows — impeachment," he said. The court also "adopted the disclosure and financial regulations that apply to all federal judges." This legislation "isn’t really about an obscure statement of ethical principles," he wrote. "It’s about interfering with the Supreme Court." Even if it were adopted, "the complaint would inevitably be that the justices are not sufficiently accountable, and pressure for new enforcement mechanisms would continue."

In National Review, Ed Whelan criticized the "confused clamor" over Supreme Court ethics.

There is a "false premise" that the Code of Conduct is binding on lower-court judges. "As [Russell] Wheeler has been explaining for a long time, the Code of Conduct itself says only that it 'is designed to provide guidance to judges.' It acknowledges that many of its provisions 'are necessarily cast in general terms, and judges may reasonably differ in their interpretation.'" Those who want this code applied to the Supreme Court "might want to explain what difference it would have made" over the past several decades.

"Federal statutory law already imposes (and has long imposed) exactly the same recusal obligations on a Supreme Court justice that it imposes on a lower-court judge, including the obligation to 'disqualify himself in any proceeding in which his impartiality might reasonably be questioned.' The recusal provisions in the Code of Conduct mirror the federal statute," Whelan said. On the downside, the Code of conduct "exposes federal judges to all sorts of abusive complaints," like Demand Justice's "outrageous attack" accusing then-D.C. Circuit judge Thomas Griffith of stepping down for a bribe when he retired "to care for his very ill wife."

In The New York Post, Glenn H. Reynolds said "we are being lectured on ethics by scoundrels."

"The Supreme Court has ruled against the left on guns and abortion and is expected to strike down affirmative action any day now. Thus it must be delegitimized in any way possible," Reynolds said. There was a "bogus ProPublica story claiming Clarence Thomas’ vacations with a rich friend, Harlan Crow, are unethical. Crow had no business before the court, and Supreme Court justices have always been allowed to have friends. (Chief Justice Fred Vinson played poker with President Harry Truman.)"

"Politico then got into the game with a hit at Neil Gorsuch for the sale of a house he held a share in — for less than the asking price, to a Democratic donor, which transaction the justice reported," Reynolds said. "None of these stories would make headlines if the court were still reliably leftist." Remember that "people who deploy the 'appearance of impropriety' standard are generally trying to create appearances, which they intend to use in ways that are themselves unethical."

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. You can reply to this email and write in. You can also leave a comment.

  • I have previously written about my desire to see a Supreme Court code of conduct.
  • There are some very compelling objections to this legislation, but they leave out one big factor.
  • I'm not sure we can continue forward without some kind of change.

As many of you know, I showed my cards on this a few months ago when I wrote an opinion piece in Tangle making the case that we needed a Supreme Court code of conduct. But now that we have an actual piece of legislation to address, that opinion felt worth revisiting and refining.

Perhaps because it challenged my opinion so directly, I thought Jason Willick's piece (under "What the right is saying") was the most thought-provoking of all. Willick made several very, very strong points: 1) The justices are already operating under threat of indictment, impeachment, and public scrutiny. 2) It doesn't take much imagination to see how a bill like this could degenerate into a partisan circus, with activist groups orchestrating anonymous partisan complaints and stirring up fevered speculation. And 3) Even Biden's left-leaning Supreme Court commission warned that such a system would be open to abuse.

Willick also made a rather obvious point: That more than anything, this push is coming from progressives now because they know how power works, and they want the current Supreme Court — with its conservative majority — to be diminished. Without the numbers to impeach a justice, it is interested in creating a bureaucracy that can delegitimize a given Justice. I think this is, on the whole, a fair read of the politics of the moment.

The only problem with Willick's piece — and it's a big one – is that he doesn't address what, exactly, we're supposed to do with the current situation.

The Politico piece on Gorsuch really does read like a fluffy hit piece to me, so I understand the motive for Glenn Reynolds’ piece (under "What the right is saying") — which essentially hand-waved the journalism about all conservative justices, including Clarence Thomas. Reynolds has a point with Gorsuch, but it's not that convincing on the whole. I actually do think it is a very big deal that a Supreme Court justice like Clarence Thomas is taking hundreds of thousands of dollars of free vacations, gifts, and housing from a rich conservative activist, even if they are best friends. It would still be a big deal even if they were family, just as it’s also a big deal that his wife appears to have been scheming with activists to overturn election results. It's a bigger deal that he didn't report those gifts. And it's an even bigger deal still that he may have a good argument for not being required to.

Also, while it's true Crow never had a case before the court (an argument commonly employed by Thomas’s defenders), Bloomberg News reported that the court declined to hear a case linked to Crow's family firm, and Crow’s business interests have been before the court. So it's not a totally clean separation.

Of course, the whole point of ethics codes for other courts is to avoid even the appearance of impropriety, and there are certainly plenty of instances right now that appear improper. Yes, Thomas used very poor judgment. Justice Sotomayor, too, has become infamous for violating judicial codes of conduct with overtly political and biased comments in public. In 2011, she also failed to disclose payments from a public university for 11 rooms at an expensive hotel for her and her family. Every justice on the court save the newest, Ketanji Brown Jackson, has made some ethically questionable choices.

Is this Murkowski-King bill the best answer? I'm not 100% sold on it, but it seems like a good starting point. It addresses the separation of powers concerns by allowing the court to create its own, Supreme Court-specific code of conduct, and it gives the court a path to set up the infrastructure to manage complaints. And lastly, aside from being a proposal passed by Congress, it would amount to the court policing itself in just a little bit more of a transparent and open way than it does now.

Russell Wheeler, who is no conservative, argued convincingly that this bill might not cause any practical changes to the court. Maybe he's right. But with trust in the court at an all-time low, even something that creates a little more bureaucracy in exchange for a bit more faith in our institutions would be a trade-off I'd take. And if the bill isn't perfect as-is, guess what? We can change it. That's what Congress is supposed to do.

Willick, Whelan, Wheeler, and others all make strong cases that a new system to monitor the court might infringe on the separation of powers doctrine and cause more problems than we have now. But none of them make the case that our current scenario is tenable or acceptable — which is the heart of the issue. It is neither sustainable nor acceptable for Supreme Court justices to be acting how they are now with impunity, so I'll line up behind the folks who are trying to make some changes — especially those working across party lines.

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Your questions, answered.

Q: When President Trump and daughter Ivanka traveled to China, Ivanka secured 16 trademarks for her company (from China). She traveled with her dad and completed personal business on this trip, using her father’s political influence to wrap up the deal. How is the ethics of Hunter Biden’s position on the board of a Ukrainian oil company different? Both used their fathers influence for personal gain yet we hear nothing about Ivanka’s deal (traveling at taxpayers’ expense) with the Chinese. I think both are unethical but probably common with other political leaders using their influence for the benefit of their children.

— Bonnie from Bozeman, Montana

Tangle: It isn't different.

One of the funny things that happens anytime I write about anything, is that I inevitably get “well what about the guy on the other team who did this, too?” I've gotten this a lot recently, since we've written about Hunter Biden a few times. So many left-leaning readers have written in to say, “well what about the Trump children?” And my answer is pretty simple: Donald Trump isn't the president.

The Trump kids and Hunter Biden are separate stories, and I don't think it's necessary to reference one anytime you write about the other. I’ll also add that the Ivanka Trump story, and the Trump kids profiting off their dad’s presidency, was covered by pretty much every single news outlet under the sun. It’s not like they got a free pass. Still, for the record: Yes, I think we have just as much evidence of Trump's kids profiting off their dad’s presidency as we do of Hunter Biden profiting off his dad's vice presidency. Hunter Biden got a job he was eminently unqualified for and was paid an absurd amount of money to perform, and it is no secret why. He shopped his dad’s influence around to try to land deals with foreign companies.

Trump's kids gallivanted all over the world while their dad was president, attempting to leverage his celebrity status and the power of his office to land major deals for the Trump Organization and for themselves. They did basically the exact same thing, if not more egregiously. Perhaps the biggest difference is that a personal laptop containing all their personal communications and photos didn’t fall into the hands of a hostile media outlet.

Both represent highly unethical actions and neither should be dismissed or ignored. And this is why I laugh basically anytime I see Donald Trump Jr. or Eric Trump attack Hunter Biden over leveraging his family name for personal gain.

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Under the radar.

Two bills restricting abortion failed to become law in South Carolina and Nebraska respectively, despite both states having Republican-dominated legislatures. In South Carolina, a near-total abortion ban failed to pass by one vote, 22-21, and in Nebraska a bill proposing to ban abortions at six weeks of pregnancy also fell one vote short of the 33 needed to break a filibuster. Abortion will remain legal in both states until 22 weeks of pregnancy. In South Carolina, all five women in the state Senate filibustered the bill with speeches on the House floor. Many political observers believe the backlash the GOP has faced from abortion restrictions played a significant role in the reluctance of Republican legislators to pass new bans. Axios has the story.


  • 56%. The percentage of Americans who said they had a great deal or quite a lot of confidence in the Supreme Court in 1988, the highest percentage on record.
  • 25%. The percentage of Americans who said they had a great deal or quite a lot of confidence in the Supreme Court in 2022, the lowest percentage on record.
  • 40%. The percentage of Americans who said they had a great deal or quite a lot of confidence in the Supreme Court in 2020.
  • 13%. The percentage of Democrats who said they had a great deal or quite a lot of confidence in the Supreme Court in 2022.
  • 39%. The percentage of Republicans who said they had a great deal or quite a lot of confidence in the Supreme Court in 2022.
  • 42%. The percentage of Democrats who said they had a great deal or quite a lot of confidence in the Supreme Court in 2016.
  • 27%. The percentage of Republicans who said they had a great deal or quite a lot of confidence in the Supreme Court in 2016.

The extras.

Have a nice day.

Few things are better than a classic American diner, and that's doubly true when it's doing good deeds. An establishment in Berkeley, California is offering anyone who is hungry a free breakfast, no questions asked. Collin Doran, the owner of Homemade Cafe, had the idea after watching people come by to panhandle or ask customers for extra food. "My reaction was: 'Hey, if you guys are hungry or in need of food, we will feed you,'" Doran said. When the pandemic hit and food insecurity skyrocketed, Doran decided to make his unusual policy official, calling it the "Everybody Eats Program." To qualify, all you have to do is grab a coupon from the diner bulletin board and find a seat. "There was a small concern in the back of my mind that, if it got well known, it would be difficult to deal with a high volume of meals or keep up with everything," he said. "But, I figured, if I'm going to get myself into trouble I'm going to get into good trouble." CBS News has the story.

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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.