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Monday, June 26, 2023

"Morass: a confusing or troublesome situation."

Rick objects to my reference to an “ethical morass” at the U.S. Supreme Court, but what other definition better fits a court that has uniquely declined to adopt a code of conduct and refuses to acknowledge any obligation to follow federal ethics legislation? Official statements – including the Chief’s 2011 report and the recent letter to the Senate Judiciary – have all been equivocal.

Far from participating in a recently devised tarnishing campaign, I first raised these issues in 1991 in the Federalist Society’s own journal, and I have been pursuing them regularly since 2006. I have defended Justices Alito and Gorsuch on ethics issues, and I have criticized Justices Ginsburg and Sotomayor. I called out Nina Totenberg’s soft-ball treatment of RBG. My forthcoming column speaks well of Justice Barrett.

Perhaps Rick did not intend to include me among the “bad, low, and . . . gross” disseminators, but it sure felt that way.

In any case, I stand by the objectivity and non-partisanship of my analyses. Justices Thomas and Alito have been cavalier at best about their disclosure obligations; their excuses have been tortured and contrived.

In any case, I do find it troubling – and surely newsworthy – that Supreme Court justices have been repeatedly feted by wealthy and well-connected political activists. If I learn of similar largesse toward or influences on liberal justices, you can be sure that I will write about it.

Comments are open closed.

Posted by Steve Lubet on June 26, 2023 at 10:55 AM | Permalink


That should read:

And I would add, the source of all sustainability, God’s Life-affirming and Life-sustaining Salvational Love.

Posted by: N.D | Jun 27, 2023 11:32:14 AM

I suppose one would be accurate if one were to state that the “ethical morass” we are experience in this Country is being influenced by an atheist materialistic overpopulation alarmist globalism that lacks both honesty and integrity, and thus views human life to be a burden rather than a Blessing. “ If we desire “to return to order”, we must first and foremost “return to God”, the source of all that is True, Beautiful and Good.

And I would add, the source of all sustainability, God’s Life-affirming and Life-affirming Salvational Love.

Posted by: N.D. | Jun 27, 2023 11:29:12 AM

Professor Lubet,

I read your post. I think part of the confusion is due to the fact that there could have only been a breach of ethics if you were able to demonstrate that the facts you provided, somehow correlated with a lack of honesty and integrity on the part of Judge Thomas or Judge Alito, that led to their being influenced in their judgement by something other than the facts, resulting in their honesty, and their integrity being impaired.

I suppose one can debate whether or not one should propose a Code Of Ethics for The Supreme Court but then, a Code Of Ethics that does not begin and end with respect for the inherent Dignity of every innocent human life from the moment of conception to natural death, would be an oxymoron.

Posted by: N.D. | Jun 27, 2023 11:12:48 AM

Must a written code of conduct necessarily proscribe the current Justices' past conduct, to prevent them and their successors from ever so acting again? Would they necessarily be deemed to have fallen below a code's standards? Wouldn't we first have to know what those standards even are/will be before that could be determined?

If Lubet is sincere in his claims about objectivity and non-partisanship, and genuinely worried about officials' ethics, then surely he'd write a heck of a lot more about the clear misconduct by the current POTUS, the DOJ, the FBI, etc.

Vladeck, in turn, can be mortified about American conservatives' responses to reports of SCOTUS members' conduct. However, what does he imagine the rest of the world's response to be to the American legal academy's silence over H. Clinton, Garland, Weiss, Schiff, and other associated American fascists' conduct and abuses of power? Does Vladeck imagine that, just because most of the world dislikes Trump, they are blind to the current government's corruption, authoritarian tactics, and pathological lying? America ain't looking more and more like a banana republic each day for nothin'.

Carry on!

Posted by: A non | Jun 27, 2023 10:40:59 AM

It would seem somewhat self-serving for the Supreme Court to refuse to adopt a code of conduct, and then defend any questionable actions as not violating a code of conduct. Did Prof. Garnett's defense amount to more than that?

Posted by: Michael G | Jun 26, 2023 8:13:08 PM

I share Prof. Stephen Vladeck's (who has blogged here at times over the years) comments (the "surprise" is his politeness, I suppose) on Twitter:

"I continue to be surprised—if not mortified—at the reaction of conservatives to reports about potential ethical improprieties by some of the Justices.

Is it really that hard to admit that there’s even a *little* room for concern—and need for a broader conversation about reforms?"

This includes someone (I'll not include the name but it's germane) making sarcastic comments about easter egg hunts.

Citing examples of overdoing it on the criticism is missing the forest for single possible trees. It is akin to saying the criminal justice system is fine since people bring some meritless cases and use over-the-top rhetoric at times.

As to the breach of conduct line-drawing question, that's rather relevant. Relying on self-interested people to self-regulate is just plain impractical. It is simply not a practical approach. It also leads to unsurprising distrust depending on whose ideological opponent is involved.

A binding ethics rule with an in-house ethical panel [shades of the Murkowski/King bipartisan proposal] would clarify as well as temper criticism.

Posted by: Joe | Jun 26, 2023 6:23:07 PM

That is a fair question, N.D. I addressed the gist of it in last week's post, and in much more detail here: https://thehill.com/opinion/judiciary/4062329-alito-thomas-and-the-supreme-courts-culture-of-concealment/

Posted by: Steve L. | Jun 26, 2023 1:10:39 PM

It is important to note, no degree of wealth or power can persuade Truth; Truth persuades us, and has no need for coercion:


Posted by: N.D. | Jun 26, 2023 1:08:09 PM

I found Professor Garnett's response to you to be rather gross, to use his own term, and I was glad to see you responded in turn.

Posted by: Robert Morse | Jun 26, 2023 1:04:26 PM

Professor Lubet,

Perhaps it would be helpful if you provided your readers with a more definitive explanation as to what constitutes a breach of conduct in regards to time spent with “wealthy and well connected political activists”. In order for a breach to occur, does one need to demonstrate that this time spent with “wealthy and well connected political activists “, influenced a decision that that particular Judge made in one of his or her decisions? What if the time some Judges spend with particular “wealthy and well connected political activists”, is merely due to the fact that they are like minded and just happen to be wealthy and are generous?

With respect, literally speaking, it seems that without clarification, your definition of morass appears to be muddled and “boggy”.

Posted by: N.D. | Jun 26, 2023 12:59:06 PM

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