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Sunday, June 25, 2023

No, There Is No "Ethical Morass" at the Supreme Court

Steve linked, the other day, to his piece at The Hill, and referred to an "ethical morass" at the Supreme Court. But, there is no such thing. There is, to be sure, a well funded and well executed campaign -- Neil Postman, call your office -- to create/manufacture the impression of such a "morass" in order to -- now that the Court is less likely than it was in previous decades to deliver outcomes congenial to most law professors and legal commentators -- tarnish the Court's (well, for some reason, only some Court members') -- reputation.

It is depressing, but hard to avoid concluding, that those participating in the construction and dissemination of these stories know well that they are political operations, aimed at stirring up political feeling and activism with respect to abortion, racial preferences, etc.  (I do not think they are not about the Confrontation Clause, but I could be wrong!) The latest episode in this campaign might be the most ludicrous, i.e., the suggestions that there is something nefarious or "scrutiny"-worthy about the fact that Justice Barrett . . . sold her house when she moved from South Bend to the Washington, D.C. area.  Oh, and even here, it is thought to be relevant that Barrett is Catholic. I suppose we'll soon enjoy Slate scoops about the "dogma" involved in moving Michiana housing stock.  

In every (supposed) "morass" story -- about Justice Alito's op-ed, about Chief Justice Roberts's spouse's job, about Justice Thomas's travels, about the house-hunting help that Justice Gorsuch got (for some reason, the stories are never about the friends and activities of justices appointed by Democrats) -- one eventually encounters (if only out of shame) the concession that the events being reported as somehow concerning are/were not, in fact, ethical or legal violations. And, maybe, one encounters a grudging concession that those justices who have not -- for some reason! -- been the subject of pro publica's (no doubt earnest and non-partisan) attentions have also been involved in similar events. 

This stuff is bad, and low, and -- to be candid -- gross. Claims to care about "our democracy," when pressed by people who are participating in, or cheering on, a transparent and (I fear) damaging campaign against the Court, ring hollow, in my view. Now, if anyone's interested in more wide-ranging conversations about the merits of a more Thayerian (and so less Brennan- or Kennedy-esque) federal judiciary generally, I'm here for it!

Posted by Rick Garnett on June 25, 2023 at 07:00 PM in Rick Garnett | Permalink


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