Democrats new bill is controversial. Would it work?
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: 12 minutes.
In case you somehow missed it, our guests for the first-ever Tangle event are locked in. We've got some of the biggest court commentators in the game: Mark Joseph Stern, a liberal columnist from Slate, Henry Olsen, a longtime conservative columnist from The Washington Post, and Anastasia Boden, a libertarian-minded columnist from the Cato Institute.
Three legal experts. Three different perspectives. All on stage. All discussing this Supreme Court term and the state of the court more broadly (which also happens to be, in part, the subject of today's newsletter).
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- Senator Joe Manchin (D-WV) said at a New Hampshire event last night that he has not decided whether he'll run for president, but said that if he does "I'm gonna win." (The comments)
- Ford announced it was cutting the prices of its F-150 Lightning electric truck by 17% as it competes with Tesla and GM. (The cuts)
- Ukraine claimed responsibility for an attack on the bridge that links the annexed Crimean peninsula to Russia's mainland. (The bridge)
- The Food and Drug Administration approved the first drug to prevent respiratory syncytial virus, commonly known as RSV. (The approval)
- Nearly one year after the death of 22-year-old Iranian Mahsa Amini while in police custody sparked national protests, Iran's morality police are resuming street patrols to enforce the hijab mandates. (The patrols)
- BREAKING: Former President Donald Trump says he is a target in Special Counsel Jack Smith’s investigation into January 6. (The story)
Democrats’ Supreme Court ethics bill. Senate Democrats plan to vote on a bill this week that will impose new ethics rules on the Supreme Court. The bill, dubbed the Supreme Court Ethics, Recusal, and Transparency Act, would require stricter financial disclosures for justices, increase recusal requirements, and give the court 180 days to adopt and publish a code of conduct, which would also allow the public to submit ethics complaints. Any ethics complaint would then be reviewed by a randomly selected panel of lower court judges. The bill would also create a three-judge panel to review motions for recusal.
The bill is sponsored by Sen. Sheldon Whitehouse (D-RI) and comes after a series of stories about justices Clarence Thomas and Samuel Alito receiving gifts and luxury travel accommodations from wealthy conservatives who were connected to cases that the court had heard. Just this week, Justice Sonia Sotomayor was also the subject of an Associated Press report, which detailed how her staff routinely prodded libraries, universities, and other public institutions to buy her book ahead of speaking appearances.
All other federal courts operate under a central ethics code administered by the Judicial Conference of the United States, which states, “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 for several years.
Public trust in the Supreme Court as an institution has been fading for years, and calls for a clearer ethics code have increased — especially from the left. In May, we covered the Supreme Court Code of Conduct Act, a bipartisan bill proposed by Senators Angus King (I-ME) and Lisa Murkowski (R-AK). However, Whitehouse’s new bill is a more sweeping and stricter proposal which currently only has the backing of Democratic legislators.
With Democrats holding just 51 seats in the Senate, they'll need to find nine Republicans to support this bill in order to overcome the filibuster and move it forward.
Today, we're going to break down the reaction to the bill from the right and left, then I’ll give my take.
What the right is saying.
- The right is strongly opposed to this legislation, arguing that Congress is acting outside its authority and there is no real "ethics" scandal to resolve.
- Many suggest that Democrats are pushing this legislation because they don't like how the court is ruling.
- Others compare this "ethics" scandal to the Trump-Russia narrative.
In The Daily Signal, Thomas Jipping said that Democrats' "ethics" bill is really about disapproval of rulings.
"The word is that the Senate Judiciary Committee may vote next week on a bill that pretends to be about 'ethics,' but might as well be called 'The Judiciary, Know Your Place Act.'" This legislation "is not about ethics, recusal, or transparency," it's about "new ways to manipulate the Supreme Court and its decisions," Jipping wrote. The left is relying on ignorance to the fact that Alito and Thomas were not even required to disclose personal hospitality until just a few months ago. And they're not alone. Ruth Bader Ginsburg "traveled to Israel in 2018 on a billionaire’s dime" and "Justice Stephen Breyer took a trip to Europe paid for by billionaire Democratic Illinois Gov. J.B. Pritzker."
Even Democrats’ favorite liberal scholar Laurence Tribe has said in a statement that "any effort by Congress to impose a code of conduct on the Supreme Court would be nothing less than 'a stark violation of the separation of powers.'" And "that’s not the worst part," Jipping added. The legislation says "any 'individual' could file unlimited 'complaints alleging that a justice … has violated' the code of conduct required by the bill, existing law requiring recusal whenever 'impartiality might reasonably be questioned,' or 'any other applicable provision of Federal law.'"
The Wall Street Journal editorial board called it "the Supreme Court Control Act."
"They’re playing off recent media reports that claim ethics violations without showing any real violations. But that’s enough of an excuse for claiming to want to protect the Court’s reputation while actually destroying it," the board said. "Treating judges like Members of Congress is exactly the wrong model to follow. The nine Justices are appointees with lifetime tenure under the Constitution in order to insulate them from political pressure.."
This "ethics scheme would drop the Justices into a new political maelstrom," the board said. "The bill invites ethics complaints alleging that a Justice violates the new rules or 'has otherwise engaged in conduct that undermines the integrity of the Supreme Court.' That open-ended standard is an invitation to groups on the left and right to file endless complaints against the Justices to create the appearance of wrongdoing or conflicts of interest. The complaints would be handled by a five-member panel of chief judges from the circuit courts. That would further politicize the judiciary by asking lower-court judges to rule on the ethics of Justices who decide whether to hear appeals of their rulings."
In The Federalist, David Harsanyi called it the new Russia-collusion hoax.
"Senate Democrats are advancing a doomed Supreme Court ‘ethics’ bill that would withhold $10 million in funding from Chief Justice John Roberts until the Supreme Court has ‘put into effect a code’ for all justices," Harsanyi said. "The Senate doesn’t have the power to dictate how the Supreme Court conducts its business — any more than SCOTUS has the power to prescribe rules for the Senate. They know it. Then again, the effort to intimidate and delegitimize the court is meant to corrode constitutional governance, so perhaps the bill makes a certain amount of perverse sense."
Much like the Russia-collusion hoax, "the effort to destroy the Supreme Court is a highly coordinated partisan scheme." First, activist groups "cook up some ethics 'scandals'" that are then "laundered by complicit or credulous leftist media outlets for public consumption. Then, the bogus scoops are held up by partisans as proof of alleged wrongdoing. Everyone, other than perhaps the most gullible partisan hysteric, understands what’s happening," Harsanyi said.
What the left is saying.
- Many on the left support a new code of conduct, and argue that Congress has a right and a duty to rein the court in.
- Some suggest the court is increasing its power while losing its legitimacy.
- Others argue that these are simple, clear solutions the court could implement.
In the Brennan Center for Justice, Martha Kinsella said Congress has the "authority" and "the duty" to regulate Supreme Court ethics.
"While Congress must respect the separation of powers and decisional independence of the justices, it has long exercised its constitutional power to regulate ethics in the Supreme Court," Kinsella said. "The list of recent unethical conduct by Supreme Court justices and members of their families is long. It includes repeated failures by Justices Clarence Thomas and Samuel Alito to disclose lavish gifts from billionaires with ties to right-wing legal organizations, failures by nearly all of the justices to recuse themselves from cases in which they had financial connections to the litigants, and justices’ spouses benefiting financially from law firms and nonprofit groups with business before the Court."
This "brazenly unethical court" that has refused to take "voluntary steps to prevent further abuses" points to statutory shortcomings in how Congress has regulated the court. This bill "would require the Supreme Court to adopt a binding code of conduct and develop a process for enforcement. It would also require the Court to adopt rules requiring disclosure for gifts, travel, and income that are at least as rigorous as analogous House and Senate Rules. And it would strengthen recusal rules by, among other things, requiring a written explanation of recusal decisions and creating a mechanism for review of recusal requests." It is "within Congress's constitutional power to ensure the integrity of a coequal branch."
In the Los Angeles Times, Jackie Calmes said the court has "more power and less legitimacy" after this term.
Even while "reports of justices’ ethical transgressions mounted," Chief Justice John Roberts "gave the back of his hand to calls for reform, claiming against all evidence that the justices can police themselves," Calmes said. "The legislation would require the court to spell out a code of conduct, create a lower court to review ethics complaints against the justices and tighten federal laws governing their financial disclosures and recusals from cases presenting conflicts of interest." It would not act on the “bad idea” of court expansion, or the "much better" idea of term limits.
Republicans will never pass this bill, but "despite the political gridlock, this debate will keep the question of the court’s ethics and jurisprudence alive. And that’s a good thing," Calmes said. "After decades of decrying judicial activism, Republicans are celebrating a Supreme Court that has taken activism to a whole new level. And what makes the court’s power grabs and lack of ethical accountability all the more objectionable is that the justices, unlike the major players in our other branches of government, are unelected and life-tenured. Their decisions can’t be appealed, legally or politically."
Gabe Roth, the executive director of the nonprofit group Fix The Court, wrote in Bloomberg that the court needs "one ethics rule" before its next term.
"Congress should pass new ethics rules for the justices before they reconvene on the first Monday of October," Roth said. "Thomas’s and Alito’s defenders have said their participation was unimportant because the court ultimately declined to hear the Crow real estate petition and the NML Capital case was decided 7-1. Their votes were not determinative. But that misses the point," Roth said. Ethics rules exist to "help navigate difficult questions with an eye toward maintaining public confidence."
"Here’s my solution, and it’s not the uber-nonspecific 'ethics code.' Instead, Congress should institute a hard-and-fast cooling off period for the justices," Roth said. "If you’re a justice who, in the last 10 years, has received income, including book advances and royalties, from an individual, corporation, security or government office, and that entity finds itself before the court, recusal should be required. The same logic should extend to physical gifts, gifts of transportation, and food or lodging with a value of over $50. Accept a vacation from [a] billionaire? No ruling on the billionaire’s cases for 10 years."
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. Write in by replying to this email, or leave a comment.
- Obviously, I wrote an entire piece about the Supreme Court needing a clear code of conduct, so I think some change is necessary.
- However, there are some huge problems with this bill, and a few things both sides are getting wrong.
- Remember: These justices don't have to be corrupt for there to an issue, it's about the appearance of impropriety.
Given that I wrote an entire edition on the Supreme Court needing a clear code of conduct, there are a few things about today’s "my take" that might be predictable. But I'm also pretty skeptical of this specific proposal. Before I explain why, let me say that I think there are a few critical things the right and left get wrong about the current state of the court.
I think the right is wrong about Congress's authority to act here. As Martha Kinsella laid out in convincing fashion (under "What the left is saying"), Congress already regulates the Supreme Court in specific ways, and has since our nation’s founding. Congress wrote the oath justices take. Congress sets the terms of their appointments, compensation, and retirement. Congress has already passed recusal requirements (which justices self-police). Congress also requires financial disclosures, and just last year passed a bipartisan bill that increased transparency for securities transactions.
Sure, Congress does not have “authority over” the court — but to say it has no role to play in how a co-equal branch operates is simply not true. Not only can Congress pass laws and regulations that impact the court, but it should — and it always has.
Meanwhile, I think the left is wrong about two things: First, this Supreme Court is not some dangerous, unhinged, "MAGA Supreme Court." Senate Minority leader Mitch McConnell wrote convincingly that this framing is misleading, noting that just 9% of the court's 57 cases this term came down to a 6-3 ideological split. 45% of the court’s decisions were unanimous. 16% were decided by a majority coalition of three liberal justices joined by Republican-appointed justices. Justice Brett Kavanaugh sided with Democratic-appointed Elena Kagan more (81% of his votes) than he did with Clarence Thomas (61%). While the impact of the court’s rulings can vary case to case, the court is simply less ideological than many liberals believe.
Second, I don't think it’s fair to characterize the court as awash in “ethical transgressions.” Justices Samuel Alito and Clarence Thomas did accept gifts and vacations from wealthy conservative donors who then had business before the court. But those stories have been blown out of proportion at this point, as the alleged corruption had no bearing on the outcome of the cases in question. And as many on the right have noted, neither justice violated any rule or code of conduct.
And yet, the fact Thomas and Alito broke no rules is precisely the point. There should be stringent enough rules, and clear enough ethical codes, that we actually know when a Supreme Court justice is ruling on a case in which a close friend or gift-giver has a strong interest.
And there is something both sides are getting wrong, which I’ve written about before: Alito and Thomas don't have to be corrupt to be in the wrong. They can each be a totally honest independent broker who did nothing more than go on a fishing trip with a friend. The standard they have to live under, as Supreme Court justices, is that they must avoid even the appearance of impropriety. Any favor that a reasonable person could construe as biasing a justice’s judgment should be cause for recusal. Maybe I'm delusional, but I like to think of myself as pretty reasonable. And when I read this...
Thomas accepted gifts in the late 1990s and early 2000s from Harlan Crow valued in the tens of thousands of dollars, including private airplane flights and a Frederick Douglass-owned Bible. Crow Holdings was involved in a 2004 high court petition... Alito accepted a free fishing vacation in a remote Alaskan village in 2008, which included a ride on Paul Singer’s private plane. Singer’s investment group, NML Capital, then appeared in court petitions in each of the subsequent six years.
... I think it is reasonable to suggest that maybe Alito and Thomas should’ve recused themselves from those cases.
Still, there are parts of this bill that are just plain bad legislation. Ethics complaints against justices should not be open to anyone with an internet connection; nor should they be handled by a five-member "randomly selected" group of lower-court justices, which could create an entirely new layer of conflict. As The Wall Street Journal editorial board said (under ‘What the right is saying’), "The judges would be under enormous pressure to act against Justices with a different judicial philosophy." The same would be true for a "three-judge panel" to dictate recusals, which would inspire unhinged infighting on the court and could lead to "court thinning."
What we need instead is simple: Clear standards about what requires recusal, and expansive financial disclosure rules. At this point, I don't care who writes them — if the court doesn't want Congress to do it, then it should do so itself. I appreciate the position of the justices who want Congress to stay out of their business, but that autonomy should come with responsibility. Gabe Roth's proposal (under "What the left is saying") is a great example of something I'd support. It's a clear guideline (did you receive income or gifts in the last 10 years from an entity before the court?) with a clear response: Recusal.
So, I am supportive of the parts of this bill that call for more expansive financial disclosures. I'm also supportive of any legislation that will increase recusals, which are far too infrequent (for both liberal and conservative justices) and is within the power of Congress to achieve. What I don't support is inviting lower courts into the game, or opening up avenues for the public to dictate which justices get to sit in on which cases. That’s why this half-baked bill wouldn’t win my vote.
Fundamentally, the court needs to operate solely within the law and outside of politics or public opinion. But it also needs to operate transparently, ethically, and without even the appearance of corruption. It's clear that is not what we have right now, which is why some change — even if it's not this bill — should be welcome.
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Your questions, answered.
Q: This might be a really dumb question, but why is the student loan ruling on "Biden v. *Nebraska*" when the issue was with the state of Missouri?
— Erica from Rochester, Minnesota
Tangle: It's not a dumb question at all. In the recent decision that struck down President Biden's plan to use language in the HEROES act to forgive student debt, which we covered in Tangle, the group that prosecutors claimed suffered harm was MOHELA — the Missouri Higher Education Loan Authority. However, the group bringing the suit was the state of Missouri. Given that the prosecution had a difficult time proving that Missouri had standing to sue on MOHELA's behalf, it's even more confusing that Nebraska is that state named in the suit, not Missouri.
Of course, the majority opinion of the Supreme Court did resolve that standing issue. But the resulting focus on MOHELA’s standing obscures some of the history of the case, which we described last October: "Arkansas, Iowa, Kansas, Missouri, Nebraska and South Carolina all say that the administration cannot take action on this large a scale without an act of Congress. Together, they argue that the policy would impose economic harm on investment entities in the states that own student loan debt."
And when this case was initially brought, Nebraska was the state leading it. The attorneys general from those other five states joined them, which is why Nebraska was the name on the initial lawsuit. Given that Missouri's case was ultimately the one advanced in court, and Nebraska's grievance did not end up having any real effect on the ruling, it is definitely confusing that the case would take its name from that state. But it's just an odd quirk of how the system works.
It's also true, though I don’t know if it played a role, that there was already a Supreme Court case called Biden v. Missouri, which was a challenge to a federal policy that all facilities participating in Medicare and Medicaid had to be staffed by employees with Covid-19 vaccinations. That might be another reason that name didn't proliferate.
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Under the radar.
The New Democrats, a self-described "pragmatic" coalition of 100 House members, is launching its own economic agenda. The 22-page plan is meant to fight inflation and grow the middle class. It focuses on implementing already-passed bills, like the CHIPS and Science Act or Biden's bipartisan infrastructure legislation, while also calling for extending the Affordable Care Act subsidies and reforming prohibitive zoning in blue states to allow more multi-family housing. While the plan is distinct to the group, the New Democrats tend to be in sync with the White House, and this could be a preview of a new agenda push from President Biden. Semafor has the story.
- 77%. The percentage of Justice Amy Coney Barrett’s decisions that agreed with Justice Elena Kagan.
- 72%. The percentage of Justice Amy Coney Barrett’s decisions that agreed with Justice Clarence Thomas.
- 79%. The percentage of decisions in which Justices Samuel Alito and Clarence Thomas agreed.
- 89%. The percentage of decisions in which Justices Sonia Sotomayor and Ketanji Brown Jackson agreed.
- -2. The current net approval rating of the Supreme Court, according to FiveThirtyEight.
- -8. The net approval rating of the Supreme Court in July of 2022, immediately following the Dobbs decision.
- One year ago today we wrote about Joe Manchin withdrawing his support from the Build Back Better plan.
- The most clicked link in yesterday's newsletter was our interview about vaccine safety with Dr. Joseph Fraiman.
- Stand down, senator: 755 Tangle readers responded to our poll asking for an opinion on Sen. Tuberville's decision to block military appointments. 70% disagreed with Tuberville's stance, with 55% opposing his stance and his tactics and 15% opposing his stance but supporting his tactics. 27% supported Tuberville's stance, with 17% supporting his stance and his tactics and 10% supporting his stance but opposing his tactics.
- Nothing to do with politics: The unidentified *floating* object.
- Take the poll. Do you think Congress should pass legislation to define Supreme Court ethical standards? Let us know!
Have a nice day.
The city of Tulsa, Oklahoma, has a new free service that's taking aim at solving out-of-control debt at the local and individual level. The Financial Empowerment Center is a partnership between the city and Goodwill Industries, with the goal of helping Tulsans reduce debt, improve personal credit, and increase savings through one-on-one professional financial counseling. Since the Center opened in December 2020, it has worked with more than 1,300 clients, and counselors have completed more than 2,000 sessions. Officials with the Financial Empowerment Center say their average client increases their savings by $3,000 while reducing their debt by $2,400. “I think having financially stable and resilient residents and a community is so important,” said Janae Bradford, director of the city’s Office for Financial Empowerment and Community Wealth. “It affects all of us." Reasons to be Cheerful has the story.
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