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Friday, July 28, 2023

The Ethics of the Justices--and Their Honor

The New York Times story on the books of the Justices serves as a nice occasion to voice something that has frustrated me about the recent discussions of the Court and the conduct of individual justices. There are good reasons to subject lawyers and judges to ethical codes, of course. Not least among them is that they provide (relative) clarity for insiders and outsiders alike. But a less good reason, at least as I see it as a Canadian let loose in the U.S., is the endless American habit of turning moral and political questions into legal ones, and vice versa. The result, all too often, is that a value or course of conduct that's not codified isn't taken seriously, and if it is codified it ends up being treated as a full and adequate account of one's obligations. (This general point generated a lot of legal scholarship about constitutional and political "norms" starting around 2016, although scholarly interest in the subject seems inexplicably to have waned in the last three or four years.)

I'm not opposed as such to codifying and/or strengthening the ethical rules that apply to Supreme Court justices. But inevitably, not everything that constitutes honorable conduct by a Supreme Court justice can or will be codified as an ethical rule. Indeed, not everything that constitutes honorable or dishonorable conduct by a judge or other office-holder should be codified as an ethical rule. And there are a lot of things that we might generally agree fall within the proper scope of official ethical conduct but are dishonorable. Of course we will disagree about what constitutes honorable conduct by an official, just as, even with an ethical code in place, we disagree about what conduct falls within or outside that code. Under our current system, for instance, absent specific circumstances it is ethical for a justice to serve for a very long time. But it is arguably not always honorable, even absent scandalous motives or actions.

Our usual focus on the official ethics of office-holders, rather than on what constitutes the honorable or virtuous path for such officials, leads us either to end the discussion once we've argued the official ethical question to death, or to seek some legal hook or official "scandal" to say what we could say more easily and directly in honor language: that some way of acting, permissible or not, is wrong, a discredit to the office, and should be criticized. The legalization of the discussion tends to lead to a false binary debate, conducted by the usual online debating societies and so-so journalistic commentators, in which something is, as it were, either a legal violation or a "nothing-burger."

Judges do inhabit an honor culture and form part of an honor group, consisting at the least of both their judicial colleagues and other participants in the professional legal community. It would be nice if more of our discussion explicitly discussed not what is ethical for judges, but what is honorable or virtuous. The dubious support of Richard Painter notwithstanding, I doubt it is either unethical or dishonorable to host a pay-your-own-way Christmas party with your former clerks. I don't think it's unethical per se for a justice to write a book--even a clearly mediocre or unnecessary one, which is generally the kind of book Supreme Court justices write. (To his credit, I think the kinds of books Justice Scalia wrote while on the bench don't fall into this category. Opinions will differ as to their quality, and I have no idea whether he was paid an unreasonable amount for them, but they struck me as serious books for people interested in law. One might say the same thing about Justice Breyer's books, although, again, I don't know whether he was paid an appropriate amount for them. I am frankly and perhaps--albeit unapologetically--snobbishly disinclined to view justices' memoirs, or collections of generally vapid speeches, in the same light.) But I doubt it is honorable to engage an agent to negotiate a large advance for such a book, which almost inevitably will be watered-down pablum (even justices, after all, are expected by major publishers to justify the size of the advance), and which the prospective author knows will be pablum, and then to hawk it up and down the country. It's ethical for justices to talk about wanting to beat the record for the length of a Supreme Court tenure, or wanting to serve a long tenure to show the people who opposed their nomination that they're staying put, and to serve accordingly long tenures. But to actually engage in that conduct is dishonorable. (I say again, in a reversal of the usual phrase, "More Souters." Nineteen years is an honorable span of time to sit on the Court--and the shortest complete tenure in recent memory.) 

I don't mind the ethics debate as such, although its quality is, to say the least, variable. But there's a lot more room for honor or virtue talk when considering these questions. I would like to see more of it, especially from the justices' honor group, which includes lawyers and legal academics. It would be nice if (where this fit one's views) we saw more public discussion in which one says, about a justice whose votes one favors, that their conduct is ethical but dishonorable, and that their compliance with official ethical requirements doesn't render it any less so. We should expect much more from holders of high office than just following the rules. 

Posted by Paul Horwitz on July 28, 2023 at 11:53 AM in Paul Horwitz | Permalink

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