James Burnham at City Journal takes a practical look at the menace behind the seemingly harmless demands for an “enforceable” code of ethics for the Supreme Court:
For starters, it would give a future chief justice extraordinary power over his or her colleagues—power that some future, malevolent chief justice could easily abuse. By selecting the lower court judges who stand in judgment of the justices, the chief justice could put a thumb on the scale of those determinations. . . . Consider this dynamic in the context of a problem facing the Court right now: leaks of confidential information. . . . The judiciary’s ethical canons flatly prohibit politically motivated leaks of confidential judicial deliberations. Canon 4(D)(5) states: “A judge should not disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judge’s official duties.” Presumably, a campaign to influence the chief justice and his colleagues by leaking “nonpublic information” to the New York Times would meet that description.
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This is not some remote prospect. The U.S. Court of Appeals for the Federal Circuit has been embroiled for some time in a contentious battle arising from its chief judge’s successful effort to suspend an elderly colleague from judicial service. Firsthand accounts suggest that the suspended colleague is fully able to discharge her official duties and raise the prospect that her actual offense is disagreeing with her colleagues. Whoever is correct in that imbroglio, it is hard to see why we would want to import such chaos into the nation’s highest court.