Supreme Court For Sale — Now Accepting Offers

In another episode of — As the Court Turns

Ethics codes are a shaky proposition. Historically, they largely depend on the environment they operate within to have any relevance at all.

In other words, do the people involved think they actually need one?

In some quarters pointing out a criminal act is viewed as a violation of an existing code of ethics. In another, not pointing it out is seen as a violation.

Like when a burglar sees another illegally entering a house when he’s off-duty with his kid.

In the current slipstream of content and information, the truth is on even shakier ground. That the sun rises is unequivocal. That it’s the same sunrise for everyone is problematic.

Media and social media are at constant odds on what constitutes news, on who said it, who should be held accountable for saying it, and depending on whether it’s an election year or not, is it even worth bothering about at all?

Recent revelations of gift-giving and excessive access within the Supreme Court (as an example of the ebb and flow of content importance) have caused this body to receive its lowest approval rating in many decades. On the order of a ‘surefire’ movie getting a 15% positive rating on Rotten Tomatoes. Not a good thing.

But the justices don’t seem to care.

In our world, we do not operate in a vacuum. Our systems of government and business are intertwined and at times get tangled up and create friction. Friction generates heat and heat (and attention) is an impediment to the smooth operation of our economy.

In the same world, gifts are universally accepted in many areas for many reasons. They’re fun and exciting, and the whole bit about guessing what’s beneath the pretty wrapping keeps millions smiling every year.

No one questions receiving gifts on birthdays or Christmas but begin to get the shakes when handing them out under tables and behind locked doors.

Some gifts save marriages and welcome newborn babies. Other gifts send people to prison for a long time if the manner in which they are exchanged compromises the integrity of the organization involved.

Like a sitting general receiving a $ 1 million loan for a new house at 1% interest from a contractor bidding on the latest Navy destroyer.

Ethics, an ancient subject lauded by Stoics and philosophers alike, has come under greater scrutiny in the 21st Century. In the past, august bodies like Congress fretted over their application — were they being sufficiently enforced to protect the integrity of the House and Senate, not to mention the nation they represented.

Now, more often than not, they are fretted over for interfering with the way business is transacted in the making and enforcing of laws.

As laws themselves are changed, declawed, or struck down for impeding economic progress, ethics is seen more as a deterrent to the swift administration of a country, than the necessary constraints needed to keep it safely on the rails.

Both houses of Congresses have ethics codes and committees that ostensibly exist to maintain the integrity of each body. How effective these rules are applied and what effect they have on the smooth running of our nation is a question that tends to be avoided.

Why is that?

The rub is that the enforcement of any ethics code unfolds like the revealing of a Russian Nesting Doll. Once you begin looking into a situation more situations inevitably pop up resulting in a general threat response, like running away from a burning building.

Ethics codes by their nature require that they are enforced or they become useless. Think, of fire extinguishers that are left empty after use.

Recent gifts and favors provided to sitting Supreme Court justices are provoking a variety of responses. Property being sold and not reported. Vacations taken and paid for by political donors with business before the court, also not reported and not being looked at as any big deal by the justices involved

Instead, we are being reminded that what applies to other judges in the federal system does not apply to the Supreme Court. Apparently, they have their sh*t together and have had it so for a very long time, so don’t need reminding of what fair, legal, and ethical really means.

To remind us, they recently released a joint and unanimous statement that the Court should not be probed, investigated, or otherwise looked into by Congress or anyone else as that comes perilously close to interfering with the constitutional duties of said court.

The court doth protest too much, methinks. They have locked arms in a forward-facing motion saying that this body needs to remain inviolate and yet they are not addressing the gifts and the appearance of impropriety.

They are not addressing the fact that they have already allowed personal and religious views to enter and inform court decisions. The loss of Roe V. Wade being a shining example.

Justice Alito’s summation read like a Sunday School lecture with the venue being quietly “switched” from a church pulpit to the courthouse for appearances but with the message otherwise remaining intact.

Abortion is a sin.

Our current Supreme Court lineup is looking more and more like the 1962 New York Mets. A team put together with too little thought, random drafts, and struggling to operate together as a team.

Some within it find originalism, an interpretation of the Constitution as and when it was written, as a holy mission, not unlike looking at the Book of Genesis as a determining influence in viewing laws that apply to society (especially women in society) and acting accordingly to support those laws or strike them down.

“But I suffer not a woman to teach, nor to usurp authority over the man, but to be in silence.” (King James Version)

Even while certain court justices openly voice their intent or preference by naming other “universal” rights given to members of society that they would like to see come before the court. Apparently seeing nothing wrong in proactively targeting these rights, as a sort of judicial wish list, rather than waiting for a case to actually come before the court, thus signaling that their action is now required.

And yet a gift or gifts valued at over $500,000 given to Justice Thomas over a period of years is viewed as nothing more than casual interaction with a constituency that he as a court member deals with in the same way that a congresswoman or senator would.

That Justice Gorsuch sold property just after his confirmation to the court, to a head of a major law firm with business before the court, is viewed more as a clerical error than a question of ethics.

Chief Justice Robert’s wife received considerable access to A-list attorneys, leveraging her relationship with the chief justice, in order to secure recruiting commissions valued at over $10 million.

As a way of measuring the severity of these judicial actions by the court justices let’s compare them to a real-world ethics situation — the 2017–2018 Houston Astros. A sports team known for providing entertainment and not judicial guidance but lives and dies on the integrity of the game.

In baseball, signs (what pitch is being thrown next, or whose about to steal second base) are stolen all the time, using the skill and experience of on-field personnel spotting errors made by coaches or players on the opposing teams. It’s part of the game.

However, a team knowingly setting up a clandestine scheme (videos, banging trashcans lids, etc.) to deliberately steal signs, undermines the integrity of the game and is considered serious business indeed.

So, much so that Commissioner Manfred fined the team $ 5 million, and ordered draft picks to be taken away, while the team itself fired and/or suspended several executives and coaches involved.

Why then is it so difficult for SCOTUS to see the correlation between spending a week or weekend being feted by people or organizations that have business before the court and a perceived threat to the integrity of that branch of government?

Laws are laws, but they can also act as an ethical code to some degree. We don’t walk against a red light because it is both illegal and dangerous. We are treated severely for driving drunk because this act brings about death and loss.

In this way, laws are assimilated into society as rules, if you will. Don’t film a catcher giving signs to his pitcher during a game. Don’t bug an opposing team’s locker room to gather intel before a match.

Don’t go to resorts sponsored by donors with business before the courts and engage with their lead attorneys because …. Well, because it might look like there’s a quid pro quo involved. Like when the NRA gives $ 5 million to a Senator’s re-election campaign.

Perceptions matter. If anyone has been paying attention to social media over the past few years, they understand this all too clearly.

When people believe you did something wrong even when you didn’t, the lie is far more convincing than the truth will be when trying to clear things up.

If there was nothing wrong as the justice claims for accepting a half million dollars in free vacations then why not just report it?

These are not difficult concepts to understand and enforce. No human is pure at heart. No human is without fault.

Influence is insidious.

A child standing next to a school bully who is doing nothing but chewing gum still feels the implied threat.

Do these learned jurists honestly believe that these gifts have no implication, no implied quid pro quo? Just a day spent duck hunting?

Ethics matters because rules are needed to keep any game fair.

We need to get over ourselves and err on the side of too much ethics rather than too little.