Does the SCOTUS need a Code of Ethics?
Preface
I never understood the phrase old habits die hard.
Not until this guy named Tim explained it to me.1
He said that for him, it’s not really a statement but a question: “What would this look like if it were easy?”
“If I feel stressed, stretched thin, or overwhelmed,” said Tim “it’s usually because I’m overcomplicating something or failing to take the simple/easy path because I feel I should be trying ‘harder’ (old habits die hard).”
This perspective is interesting. Take the easy path, and your prayers get answered. Old habits don’t die hard; they dissolve easily. The former seems to suggest that we have to murder them; the latter tells us they die of natural causes.
I read something a few months ago that said:
You can get a lot of free time back by simply not having an opinion on everything.
That’s not true for me.
Deciding to avoid forming an opinion turns into a vicious cycle. Because what happens is, if the thing resonates, I file it in my notetaking system and my memory. Eventually, once the topic develops enough mind share, I slowly begin to devote heaps of time to understanding it.
I reject the status quo on opinion formation. This status quo falls into two camps:
If you don’t understand something, don’t talk about it
Unplug from the constant flow of information by not developing an opinion at all
I could easily be in one of these camps, but I also cannot ignore the fact of COVID-19, which is to say that things spread quickly. What you think you don’t need to understand or have an opinion on can show up at your front door very quickly.
If having the privilege of avoiding the requirement to understand or develop an opinion on an issue is the first stage of opinion formation, developing an opinion and not being able to share it is Level 2. Level 3 is when there’s only one thing you’re allowed to say about it. Level 4 is when you have to speak your mind.2
So even though I could use some more free time, avoiding having an opinion is the harder road for me; it is not easier. And, more things are showing up at my doorstep that I have to form an opinion about.
As the world becomes more interconnected, I believe the same will be true for you, too.
Introduction
On Monday, the Supreme Court of the United States (SCOTUS) released its code of ethics. Honestly, I was shocked they didn’t have one before this week.
I am not a lawyer, nor am I a legal ethics expert. Still, I have devoted a significant amount of time to understanding the relevance of a documented code of ethics, albeit in other domains such as Public Accountancy. So, I can at least comment on the importance of a code and its influence on the conduct of professionals.
Typically, I refrain from speaking on matters I do not fully understand. I’ve tried hard to make a habit of not commenting on things that I know nothing about. Something which is rather rare on the internet.3
I say I’ve tried because old habits die hard.4
I have a strong opinion on this announcement.
And I’m not the only one. Many have highlighted how the SCOTUS’ new code is worded to narrow their responsibility. They have also pointed out that the code does not contain any meaningful enforcement mechanism to hold justices accountable for violations.5
If no one is enforcing the code of conduct that the SCOTUS has published, it raises interesting questions about the development (sociology) of codes of ethics, relevant not just to the Supreme Court but to all professionals. And, because this is all happening in real time, we have real-time data for a case study.
Two questions about the sociology of ethics are obvious to me. I think they are also obvious to all who entertain this story if we grant some concessions to the SCOTUS instead of just criticizing their efforts.
Number one, who should come up with the initial draft of a code of ethics?
Number two, should the group of people being governed by a code of ethics also be the ones to describe who should enforce it?
Number three, who should enforce a code of ethics?
Regarding number three, Leah Litman, co-host of the Strict Scrutiny Podcast, described recently that meaningful ethics reform may have to come from outside the court. While looking for the right approach to this issue, we may think that Leah’s comments bring the discussion to a close. Respectfully, they do not.
We still have to reconcile our opinions with one very important fact.
No one seems to be talking about …