How the recent SCOTUS session renewed questions about the Court's legitimacy; Fresh Air, NPR, July 6, 2023

Terry Gross, Fresh Air, NPR; How the recent SCOTUS session renewed questions about the Court's legitimacy

"NY Times legal reporter Adam Liptak says the Court's liberal members have accused the conservative supermajority of engaging in politics and not applying established law to the questions before them...

GROSS: Why is there no code of ethics for the Supreme Court justices when there are codes of ethics for judges?

LIPTAK: There are federal statutes that apply to the justices on disclosure and recusal. So it's not as though they're completely unbounded. But the general code of ethics that applies to all federal judges does not apply to the justices. Moreover, the justices make their own decisions about whether to recuse or not, not subject to second-guessing from anyone else. And that is, you know, at odds with the old adage that no one should be a judge in his or her own case. The largest problem - well, there are many problems. A large problem is that it is a little hard to figure out what the enforcement mechanism ought to be.

If it's the Supreme Court, it's hard to know how you're going to put another body above the Supreme Court and decide when the justices have violated ethics provisions. And it's also probably problematic to let the other justices decide, for instance, who should recuse because that could give rise to strategic behavior to try to get people off a case for reasons unrelated to ethics and related to the outcome of the case. So the whole thing is a tangle, and what you would hope for is that the justices would feel shame and just try to act responsibly.

GROSS: They're the highest court in the land. Like, they are the Supreme Court. And if they don't abide by ethics, then what does it say about the ethics of the decisions and of the court itself? I mean, they're supposed to be monitoring everybody else's ethics.

LIPTAK: The Supreme Court should be a role model. The Supreme Court should be above reproach. The Supreme Court should be the last place we should look for ethics scandals, and yet they seem to arise almost weekly.

GROSS: You know, at the same time, some members of the court might be ethically challenged. Many legal experts think the court is expanding its own power. So if that's true, if there are people on the court who are ethically challenged and, at the same time, the court is expanding its power, that seems like a very questionable combination.

LIPTAK: Yeah, that's not a great combination. And maybe the two things move together because if you have the self-confidence to think you can decide your own ethics principles, you probably also have the self-confidence to think you can decide every other question imaginable."