John Roberts: The Samuel Beckett of the Federal Bench

Chief Justice John Roberts has always come off as a rather serious sort of fellow, a guy who seemed to force a thin smile only out of a sense of obligation.  Who, then, would have guessed that, when no one was looking, he was composing work for the Theater of the Absurd?  In the spirit of Samuel Beckett penning Waiting for Godot, Roberts has now produced, in the guise of a Supreme Court Code of Ethics, Winking at Clarence.  The works are similar because, at their core, they are the same thing.

A joke.

Roberts did not enter the field of comic fiction by choice, since he considered this foray into the genre wholly unnecessary.  Of what was supposed to be a defining code of conduct, he wrote, “For the most part these rules and principles are not new: The Court has long had the equivalent of common law ethics rules, that is, a body of rules derived from a variety of sources.”  But, alas, “The absence of a Code has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.”

Yes, that must be it.  It was only the absence of a code, not questionable behavior, which led to the grievous misapprehension that some of the justices sneer at ethical standards they should not have needed to be told to adhere to.  After all, who would be swayed or even tempted by a mere hundreds of thousands of dollars in unreported gifts from a billionaire ideologue with a political agenda?  Certainly no one with the high moral fiber of those on the Court now.

To alleviate what the chief justice adamantly insists are grossly unfair accusations against his roster of saintly associates, he finally felt compelled to attack the problem, although a soupçon less than head-on.  For example, one of the dictates asserts, “A Justice should not be swayed by partisan interests, public clamor, or fear of criticism.” Key here is the use of “should not” rather than “may not.”  That’s like saying a driver should not run a red light.  Try that one in traffic court.

Then there is the section on “Disqualification.”  “A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”  Should again.  Why not use “must?” 

Roberts seems to ignore that one of the most egregious examples of what many see as ethical corruption on the high bench is Clarence Thomas’s refusal to recuse himself, and then being the only dissent, in January 2022, when the Court refused to apply executive privilege to block the release of Donald Trump’s White House records related to the January 6 insurrection.  There were any number of calumnies…undoubtedly unfair…that Thomas’s decision was impacted by his wife, Ginni, who is not only an Alt-Right devotee, but also was an active player in the efforts by Trump loyalists to overturn the 2020 presidential election. 

Thomas’s defense, delivered with the same dismissive arrogance with which he treats other accusations about his impartiality, is that he and his wife do not discuss politics or cases before the Court.

Sure.

In addition to not making any of these lofty sounding rules mandatory, there is no provision defining what action can be taken in the extremely rare case that a justice is found to have violated one of the “shoulds.”  There is no provision for punishment.  What is the chief justice’s plan?  To recruit nuns from the parochial school he attended as a boy and have them crack an offending justice across the knuckles with a ruler?

Although Justice Thomas has, quite correctly, been the focal point for ethical lapses, Roberts himself is more than a spectator in the Court’s descent into its current morass.  While no one has accused him personally of illicit activity, there is the question of whether the Chief Justice’s wife should make more than $10 million as a consultant to major law firms on their hires, as Roberts’s wife did, even though it may be viewed by “an unbiased and reasonable person” as influence peddling. 

Most Court observers have noted the new code’s rather glaring weaknesses, but few dismissed it as the farce it is.  Some, such as Amanda Frost, a University of Virginia law school professor and “ethics expert,” called it a “small but significant step in the right direction, in that all nine signed on to a statement making clear that certain conduct is not permissible.”   She claimed this agreement would “make it less likely such conduct will occur in the future.”

Oh, would it now.  What the justices signed on to was a sop to public opinion, nothing more.  This same group, mostly on the conservative side, had been contemptuous in dismissing the need for any firm rules for years and only acceded even to this pablum when the court’s legitimacy sunk to perhaps its all-time low.

Nor is it possible that Chief Justice Roberts was unaware of just how full of holes his new code was.  He is notoriously finicky about the words on a page. In a 2008 interview, Roberts discussed the importance of cogent, unambiguous writing.  “Language is the central tool of our trade. If we’re not fastidious with language, it dilutes the effectiveness and clarity of the law.”

Here, he has certainly been both fastidious and clear in drafting a code of ethics that no one need follow. 

Can’t get more Absurd than that.