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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey Aughie?
J. Aughenbaugh: Good morning Nia. How are you?
N. Rodgers: I'm most excellent. How are you?
J. Aughenbaugh: Well, I'm good in part because it doesn't happen all that often, Nia, that you and I have a conversation about something that happens or has happened in the US government for the first time in our country's history.
N. Rodgers: That's true. Generally speaking, the government has been around the block.
J. Aughenbaugh: Yeah. A lot of what we discuss, whether it be government documents, processes, et cetera, they happened with quite a bit of regularity. You and I discussed the fact that you so much of what the media says is brand new in American government today really isn't right?
N. Rodgers: It's like when people say this is the worst it's ever been, I'm like Civil War like, come on.
J. Aughenbaugh: Great depression.
N. Rodgers: But we could just point to several things in history. Like no, that's probably considered worse.
J. Aughenbaugh: Well, the polarization is terrible today. Really did you see what went on in the early 1800s.
N. Rodgers: Yeah people at least theoretically, I mean, most senators aren't throwing an elbow, although Kevin McCarthy baby elbowing people in the kidneys or whatever, Generally speaking, they are not throwing an elbow on the floor of the Congress of the House or the Senate, whereas back in the day you pick up your cane and start whacking someone with it. We have been in more uncivilized times than we are currently.
J. Aughenbaugh: Yeah, but today we get to discuss something that has occurred for the first time in our country's history, and that is.
N. Rodgers: The Supreme Court has given itself a code of ethics.
J. Aughenbaugh: Yeah, they referred to it as a Code of conduct.
N. Rodgers: Sorry, Code of conduct, and we will link that in the research guide because that's an important government document. It is a brand crispy new government document. Hot off the press, like actually it's not even been to a press but anyway hot off the Internet as it were. Interesting about that to me, at least is in 230 years, nobody has written a code of conduct for the Supreme Court, but they have felt pressured in the last couple of years to come up with this document, was it unanimous?
J. Aughenbaugh: It was. It was unanimous.
N. Rodgers: We shouldn't really be super surprised by that because as Aughie will remind us on a regular basis, many of the Supreme Court findings are unanimous or darn close. This whole thing of the 54, that's what makes the papers, but a whole bunch of it is 9081.
J. Aughenbaugh: Yeah, if you could get that level of agreement.
N. Rodgers: On anything else, like imagine if you got the UN to agree at that level.
J. Aughenbaugh: The United States Congress.
N. Rodgers: The Congress, we would all fall over in shock if there was or even just imagine wherever you are getting that in your group of teammates or your group of colleagues or your friends circle, your friends circle. When you say, what do we want for dinner, you could get that agreement.
J. Aughenbaugh: Family members during holiday meals.
N. Rodgers: Oh my goodness, it would be amazing but anyway. They came up with this code.
J. Aughenbaugh: Yes, it's about 14 pages in total nia.
N. Rodgers: I was going to ask you how long it was because it doesn't seem like it's very long.
J. Aughenbaugh: No, it's not very long. About slightly over seven pages is the actual code itself. The code is comprised of five canons and numerous subsections. Then it concludes with five pages of commentary.
N. Rodgers: Of course it does.
J. Aughenbaugh: Which explain how and why the Supreme Court code of conduct differs from that to which the lower federal courts must adhere.
N. Rodgers: So basically they wrote an opinion?
J. Aughenbaugh: Yes pretty much.
N. Rodgers: Fair code. Supreme Court never change.
J. Aughenbaugh: Here's our ruling and then here's the explanation for it.
N. Rodgers: But in this instance, no dissent, nobody who says, no we got it all wrong. Getting this, and that's why it's so short. This is what they could agree on.
J. Aughenbaugh: Oh, sure.
N. Rodgers: This divided court. They could have gotten their big, long, huge document because hello.
J. Aughenbaugh: Yeah. I think it also reflects the fact that to get that consensus meant that they couldn't go into a lot of specific details because listeners, what Nia and I are referencing in Nia mentioned this just a few moments ago. The Court was being pressured to produce this code of conduct, or this ethical, if you will, guidelines because earlier this year, we're recording late 2023, there were a series of newspaper articles chronicled extensive travel undertaken by Justices Thomas and Alito that were paid for by wealthy conservative, if you will, benefactors. I think one of the reasons why this code is this short and has this commentary, is that the justices have different ethical concerns. Whereas on one hand, Thomas and Alito were getting roasted by the media and by certain Democratic senators on the Senate Judiciary Committee because of their travel. Some of the other justices were getting roasted because of other ethical concerns related to books and attendance at speeches, et cetera.
N. Rodgers: And recusals.
J. Aughenbaugh: Yes and not recusals.
N. Rodgers: All of the justices at one point, well, not all of them, but many of them have been accused of not recusing themselves when they should have recusal is when a justice says, I will not hear the case and I will not rule on the case because I have a vested interest in some part of the case either it's a friend of mine who's one of the attorneys, it's a previous business venture, something, or I've ruled on it in a lower court I believe didn't our most recent judge, she didn't.
J. Aughenbaugh: Brown Jackson has had to recuse herself from a couple of cases.
N. Rodgers: Something in lower court court judge, and she's like, it's not fair for me to then rule like oh yeah, I was so brilliant the first time, I'm going to vote for myself again. Like she can't do that so she recused herself.
J. Aughenbaugh: Justice Kagan, the first couple years she was on the court saying had to recuse herself because in her previous position as Solicitor General, she had represented the government in cases.
N. Rodgers: That then made their way to Supreme Court. That recusal process is not an abnormal, like nobody gives you side eye if you recuse yourself for a good reason. They would give you side eye for recusing yourself for something like, yeah, I got things to do next Thursday. I'm going to the dentist.
J. Aughenbaugh: Oh, this is a boring tax case. I don't know how to hear.
N. Rodgers: Yeah, I don't really care. You can't recuse yourself because of that. When you are appointed to Judge, isn't it called a duty to sit?
J. Aughenbaugh: Yes.
N. Rodgers: Even if it's super boring, you are required to sit there and pay full attention, and we're going to apply the law accordingly.
J. Aughenbaugh: Yeah, this duty to sit or the obligation to hear a case becomes really important in regards to the commentary because one of the exceptions that gets carved out by the Supreme Court in their code of conduct is the fact that if a whole bunch of the justices recuse themselves, it could affect a case and there's no other, if you will, justices that can be assigned so that there is the full complement of nine justices to hear the case. Does that make sense?
N. Rodgers: If you were. You could in fact not be fulfilling the court's ultimate obligation, which is to rule on the constitutionality of thing. If enough justices said, sorry, I can't be a part of that case.
J. Aughenbaugh: Unlike lower federal courts.
N. Rodgers: You can place people, you can bring in people from other courts.
J. Aughenbaugh: Other courts, or that there are additional judges on that appeals court. The Supreme Court doesn't have a bench.
N. Rodgers: It is the bench.
J. Aughenbaugh: It is the bench.
N. Rodgers: That's not done.
J. Aughenbaugh: Yeah, they're not done.
N. Rodgers: What do they pinch hitting. There's no.
J. Aughenbaugh: Yeah, there's no substitutes. Like you see in soccer match. Like in soccer matches. The midfielder is no longer performing well, or, you know. He just got tackled hard and he broke his ankle. Hey, we're subbing in? Yeah, there's no subbing in here. For our professional wrestling fans this is not some tag team where.
N. Rodgers: You can get by a chair and you tag out to somebody else.
J. Aughenbaugh: Yeah.
N. Rodgers: They come in the ring. Doesn't work that way.
J. Aughenbaugh: Let's go ahead and get into what it is, what's actually in the code. Well, first of all, it was somewhat of a surprise when the Court basically like next to no PR just went ahead and dropped it on us on November 13.
N. Rodgers: On a Monday.
J. Aughenbaugh: They dropped yeah, on a Monday afternoon.
N. Rodgers: Oh, hey, and by the way, here's our code of conduct. See you tomorrow?
J. Aughenbaugh: Yes.
N. Rodgers: Everybody went, wait, what?
J. Aughenbaugh: Moreover, this is stated in the Code of Conduct. The rules in the code of conduct, as far as the Justices are concerned, are not new. They said that they wanted to dispel this misunderstanding quote, that 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. To dispel this misunderstanding, we are issuing this code, which largely represents a codification of principles that we have long regarded as governing our conduct. They basically just came out and said, first of all, there was no press conference. It wasn't like Chief Justice John Roberts said, hey, look at us, we did something really cool, and we were responding to our critics. No, they dropped it on a Monday afternoon, and then basically said, there ain't anything new here.
N. Rodgers: This is what we've been doing all along. We I don't know what you're fussing about.
J. Aughenbaugh: But .
N. Rodgers: Basically.
J. Aughenbaugh: Which when we get to the criticisms of the code, this is one of the criticisms because basically the Justices are, as you just mentioned. We've been doing this all along, so we'll just go ahead and put this in one document. You idiots can understand that we've been doing this all along.
N. Rodgers: Still they say.
J. Aughenbaugh: Yes. As I mentioned, there are okay and I'm not going to go into the weeds, if you will.
N. Rodgers: With all the canons in the sub section?
J. Aughenbaugh: The subsections, the commentary itself, I think is very noteworthy. First of all, the court said it's code of conduct is substantially derived from the code of conduct for other federal judges. But then it goes on to say, we've adapted it to the unique institutional setting of the Supreme Court.
N. Rodgers: It's like everybody else only special because we're different. Isn't that basically what they said? Which I call BSN, because you can't be the same and be special and different.
J. Aughenbaugh: Well, I have students who are just like we want to be treated equally. Then they'll come up to me and say.
N. Rodgers: I need an extension.
J. Aughenbaugh: Extension. I'm like, but then you're not.
N. Rodgers: Being treated equally.
J. Aughenbaugh: Treated equally. You're being treated differently.
N. Rodgers: When you say I need an extension, what you really should be asking me for is can everybody in the class have an extension, because then you're not asking for special treatment. I buy part of that because obviously it is a unique court in the sense that it's the last one. The court, the last resort. The pressures on the Supreme Court are unique. They are different than the pressures on any other court, because every other court has the back of fine. Take it to another court and see what they say.
J. Aughenbaugh: Or again, as we just mentioned, you know, lower federal courts can ask judges from other appellate courts to sit in by designation.
N. Rodgers: They can compare their rulings to other districts and courts and other rulings. Nobody acts in a vacuum at the lower level judge. They look at all the other courts.
J. Aughenbaugh: Justice Robert Jackson infamously once said that the Supreme Court is infallible because it's final.
N. Rodgers: Whether it's infallible or not it's defined by its finality
J. Aughenbaugh: That's right. In the commentary really emphasizes that's what makes the US Supreme Court unique, okay, fine. But then the commentary goes on to say, decisions as to whether a justice should recuse themselves is up to the individual justice. This is what's driven a lot of the current criticism of the court, which is why is it up to the individual justice?
N. Rodgers: In my objection, I'm raising my hand because my objection to that line of thinking. Aughie and I have different views of this code of conduct.
J. Aughenbaugh: Yes, we do.
N. Rodgers: But I think one thing that we probably agree on, is that self adjudication is maybe not the most transparent way to go about things.
J. Aughenbaugh: Yes.
N. Rodgers: It will lead to this being an ongoing question. It will lead to it being an ongoing problem. If you get to decide with no input from anyone else, whether you're acting in an ethical or unethical manner, you're never going to find yourself unethical. No human, rely on deep self reflection you might, but in the moment, most people I truly believe this about, the Supreme Court justices, believe it about everybody else. Most people when they are acting, they are acting in what they think is good interest and good faith. Hardly ever do people wake up in the morning and go today, I am going to be a bad faith actor, and do terrible things in the world. Now we know some people who might do that, and you and I personally know a couple of people who might do that. But generally, it's not how people act.
J. Aughenbaugh: Moreover, I would even say, unless they give me a reason to question, then I won't.
N. Rodgers: Right.
J. Aughenbaugh: Maybe I fall on the spectrum of.
N. Rodgers: You are less cynical than I am, that's so nice.
J. Aughenbaugh: Many of my students, if they heard this, they would be like, oh my goodness professor.
N. Rodgers: He's having some out of body experience.
J. Aughenbaugh: Experience. Is he having a stroke? But unless you give me a reason to doubt the sincerity of your commitment to ethical behavior, I'm not going to immediately go to that place and say.
N. Rodgers: That's the good professor in you who says, I'm believing you're not cheating unless you give me real reason to believe you are cheating.
J. Aughenbaugh: Yes.
N. Rodgers: Then I will believe that you are not.
J. Aughenbaugh: Yes.
N. Rodgers: Because otherwise, you have to go through life being super suspicious of, what is it, 160 students each semester, which would be exhausting.
J. Aughenbaugh: That's no way to live.
N. Rodgers: No way to live a life. I agree. I'm a little more cynical because I'm like power corrupting, but anyway.
J. Aughenbaugh: But the issue that I have with the individual deciding is that each of us can very easily have blinders on.
N. Rodgers: Exactly. I know what my motives are, so it's going to be fine.
J. Aughenbaugh: Fine and because of what's been reported in Nia, you and I've talked about this off recording because I am a scholar of the Supreme Court. Now I am being skeptic. I was skeptical of many of the media reports about Thomas and Alito's travel, simply because I've been aware of that behavior occurring throughout the history of the US. Supreme Court. I didn't necessarily want to engage in the what aboutism of other justices, but I just thought it was one of those situations where the media was smelling blood because a bunch of Senate Democrats didn't like recent Supreme Court rulings, so they were using this as a wedge to put pressure on the Court, which has been done in the past. There were senators after the Warren Courts series of civil rights rulings that all of a sudden found unethical behavior among some of the Warren Court Justices. They did this as a way to put pressure on the Court to you go back into their lane.
N. Rodgers: Get out of civil rights.
J. Aughenbaugh: Yeah. Get out of civil rights.
N. Rodgers: You don't make policy.
J. Aughenbaugh: Say you don't make policy.
N. Rodgers: Which is what you're doing by doing ruling in these ways.
J. Aughenbaugh: Leave education to states, that's federalism, that states rights, whatever the case may be, I was more skeptical of this narrative that today's justices are more unethical simply because I've long known of a number of justices across the ideological spectrum who didn't think twice that their behavior was unethical. I mean, Abe Fortas didn't think it was unethical when he visited the White House over 35 times the first three years he was a justice on the Supreme Court to advise President Johnson. You're a member of the Supreme Court, you need to stop informally advising the President, even if the President is one of your besties, You can't do that anymore, you can't. You can't make an obscene amount of money on the side because your full time gig as a justice of the Supreme Court.
N. Rodgers: So your speaking fees should be.
J. Aughenbaugh: Minimal at most.
N. Rodgers: Yet we've had justices who've unbelievable amounts money for speaking fees.
J. Aughenbaugh: This trend to where every new Supreme Court justice gets a book deal is starting to alarm me simply because what they're getting paid to write these books is easily 10, 15 times their annual salary on the Supreme Court.
N. Rodgers: Right.
J. Aughenbaugh: You start talking about that money, you start talking about the value of the trips that Thomas and Alito got. Yes. Non skeptical, non cynical, non jaded people are going to start thinking, do we now have a Supreme Court much like what was the old adage, we have the best Congress the money can buy?
N. Rodgers: Exactly. We have a Supreme Court that's being purchased.
J. Aughenbaugh: That's where my concern arises because when you get in your own head, well, this is acceptable behavior and my colleagues do this and they think it's okay and what I'm doing isn't any worse.
N. Rodgers: You get that in a lot of sorry, police come to mind?
J. Aughenbaugh: Yes.
N. Rodgers: Military units come to mind?
J. Aughenbaugh: Yes.
N. Rodgers: Where behavior that you would not think was ethical. Once you see that everybody around you is doing something, it's harder to measure the ethicality. That's not right. The ethicalness.
J. Aughenbaugh: Yeah, the ethics of it.
N. Rodgers: Right. It's really hard to measure that when you're in a group of people who, well, we all take speaking fees, so if my speaking fee is $100,000 and your speaking fee is $100,000 then how is that outrageous? It's not, we're getting paid the same. Now if my speaking fee was $10 million and yours was $100,000 that would be weird and I put to you that your speaking fee as a Supreme Court Justice should probably be nothing or it covers the cost of the travel. It covers the cost of going wherever it is that you're going. But also I have a whole view of public servants as people who probably shouldn't be making a huge amount of money out of being public servants and that's a whole different. I mean, one of the reasons that you go into public service or one of the things, sorry, that you're aware of when you go into public service is that you will not be making a lot of money. You could be making a lot more money being a lobbyist on constitutional issues or lobbying with one of the law firms in DC for the Supreme Court than you make as a professor at VCU. I'm not trying to slam VCU, but they don't have the money to pay you what those guys could pay you.
J. Aughenbaugh: That's right.
N. Rodgers: To work the court. You could work the Court and make probably at least $1 million a year. Am I correct that you do not make that from VCU? I thought that would make you giggle because even President Raw doesn't make $1 million in his salary. That's not what we choose to do. What we choose to do is be involved in something that is public oriented and then when we do that, we know that we're doing that at the cost of making a lot of money.
J. Aughenbaugh: Yeah. Financial remuneration.
N. Rodgers: We get a different remuneration. We get the pleasure of graduation where we see people graduate and we're like, yeah, we helped that happen. This is wonderful.
J. Aughenbaugh: Yeah. When I see students go on and they do well.
N. Rodgers: They get it. You see them get ideas and then welcome, you're like, yes, that's what we want here, our thought.
J. Aughenbaugh: They graduate and then they send me emails or they call me up and they say, hey, Aughie, I got to use blah, blah, blah from this class in my job and it was great.
N. Rodgers: Because I do a thing and I feel good about it.
J. Aughenbaugh: Yeah, I impressed my bosses or my teachers because I went ahead and started talking about arbitrary and capricious and they were like, how do you know about the arbitrary and capricious standard? Well, I had this professor as an undergrad who just drummed it in our heads class after class. You used it correctly and they're like, yeah, and it's, it's open.
N. Rodgers: It feels good.
J. Aughenbaugh: Yeah, right. There's another thing about the Code that I think that should be mentioned. This is going to segue by, Nia, into our discussion of criticisms of the Code of Conduct. In the commentary section of the Code, there is a couple paragraphs that talk about that there is no mechanism for enforcing the canons in the subsections of the Code on the individual justices. The commentary makes it very clear that the question of enforcement should be left to the individual judge. It quoted the late Supreme Court Justice Tom Clark when Clark observed that judges must bear the primary responsibility for requiring appropriate judicial behavior, and then it outlined various steps that the Court may take to assist the justices in complying with the Code. For instance, the clerks of the justices will be giving the additional task of, let's say the Supreme Court agrees to hear a case. One of the justices clerks is supposed to go ahead and investigate to make sure that there is no conflict of interest. Because this has actually come up where federal judges have had to, after the fact, recuse themselves because they didn't know they had a conflict of interest. Some of listeners may be saying, well, how did you not know? Well, if you're talking about a complex business security case where there are shell companies and holding companies etc.
N. Rodgers: You may or may not have stock with and don't even realize. There's that. There's also, if you think that most law firms are two guys, your bonkers. The big law firms that are in front of the Supreme Court are hundreds of lawyers. You may have worked with one on a case, I mean there may be some connections that you're not even aware of.
J. Aughenbaugh: A lawyer in a case in front of the Supreme Court is part of a firm that has 200 lawyers and one of those lawyers is working on a different case and that case comes to the Supreme Court. That case for that company, the justice may have minimal stock in. But they don't know.
N. Rodgers: Or they may have ruled on that on some aspect of the case.
J. Aughenbaugh: And they're unaware. Then you have the issue of spouses.
N. Rodgers: Oh, spouses.
J. Aughenbaugh: Okay. But again.
N. Rodgers: They're complicated.
J. Aughenbaugh: They are all complicated.
N. Rodgers: You can't be grumpy about a spouse's politics, which is part of what the pressure was Junie and
J. Aughenbaugh: On Thomas. Clarence?
N. Rodgers: Clarence Thomas. Because she is a very politically active individual and politics are not something that a great number of Democrats care for.
J. Aughenbaugh: That's right, yes.
N. Rodgers: They tried to connect those in some way. But hypocritical, and I'm going to just say this hypocritically, Justice Ginsburg's husband. He was also politically active, but he was politically active in a way the Democrats liked and so they did not bring that up with him. This comes back to this question of Aughie, and I always say, be careful about the paint brush flicking back on yourself, like you go to paint people with this.
J. Aughenbaugh: The broad strokes.
N. Rodgers: With broad strokes, you are likely to get some of that on your own shirt. You have to be really careful about the idea of I don't like this person's politics, so I'm going to try to make a rule.
J. Aughenbaugh: I actually had a colleague. Go ahead.
N. Rodgers: I'm not picking on Ginsburg either.
J. Aughenbaugh: No, no yeah.
N. Rodgers: If you could tell your spouse what to do, Aughie, would you be divorced? I'm not trying to be ugly, but you can tell your spouse what to do and they're not an autonomous person. There would never be a divorce. There would never be anger. There would never be anything. People would have completely harmonious marriages that would.
J. Aughenbaugh: To your point, Nia, the anecdote I was going to share is that I had a conversation with a colleague who is very proudly feminist. She was concerned about this criticism of Jenny Thomas because from her perspective.
N. Rodgers: He's supposed to tell her what to do or she's supposed to sublimate her.
J. Aughenbaugh: Not have a career.
N. Rodgers: Her career. Her goals. Her beliefs. To be the dutiful stand by your man.
J. Aughenbaugh: Yeah and she was just like I'm really concerned about how far this might go.
N. Rodgers: I agree with that. Well, and tell me which Supreme Court Justice who would be married to a person who would not be as powerful a personality as they are. A marriage does not survive if both of you are not similarly drawn. You as them in vigor, but I'll just stand over here and be a wallflower. That's not going to happen with any of the spouses.
J. Aughenbaugh: I remember a few years ago I was reading a biography of former justice, Sandra Day O'Connor, Nia, and there were a couple chapters.
N. Rodgers: His husband was politically active.
J. Aughenbaugh: But his name, I think, was John O'Connor. John O'Connor really struggled when the family moved to Washington, DC. Because when they were still in Arizona, he was a partner in a thriving law practice. But when they moved to DC, he basically had to get a brand new job. But his law practice had to change because he couldn't represent interests that might come in front of this US Supreme Court and he struggled. Justice O'Connor in some ways felt bad, but in other ways, the way they rectified it in their marriage was him acknowledging that early on in their marriage she subjugated her career to his so he could become successful. That was the way, he finally wrapped his mind around the fact that he was now, Mr. Justice O'Connor.
N. Rodgers: Can I from a woman's perspective, I'm with your feminist colleague. This drives me bonkers. I don't know that I'm particularly feminist except that I believe in women's rights. There you go. But we have this weird thing where the Supreme Court seems to be special in terms of spouses. But we're okay with Senator spouses. I don't know. Elizabeth Taylor. Like having a big, huge career. That's John Warner. He was one of her many husbands, not she was one of his many wives. Let's put that in the proper perspective. But we want first ladies to have a cause and to be active and to be whatever. We want all these other spouses to do these things. But when it comes to the Supreme Court, we're going to say, no, your spouses can't do that. That's ridiculous. It's ridiculous on both sides. The male spouses and the female spouses of Supreme Court Justices are not in the mix. Then they shouldn't be in the mix unless they bring a case before the court, in which case their significant other has to recuse and I think the Justice Thomas and Jenny Thomas did have that at one instance, where he probably should have recused himself and I don't know that he did.
J. Aughenbaugh: No, he did not.
N. Rodgers: That's not a good situation. That's not how you'd want. Justice Ginsburg should never have heard any case where her husband was involved in her husband's law firm.
J. Aughenbaugh: Because he was a well known tax attorney in Washington, DC.
N. Rodgers: I don't know if she recused or not, but those are instances where that should not be in question. You should recuse. If your spouse is involved in something even tangentially before the court.
J. Aughenbaugh: There are numerous examples among the lower federal courts where federal judges have not recused themselves, even when their spouse's employer was a party in a case that they were ruling on it.
N. Rodgers: So wrong. That's right.
J. Aughenbaugh: This is one of those situations to where, if we have too clear of a rule, it's going to harm spouses and if we don't have a clear rule, then you're going to have the situation like we have integrity, security of the court.
N. Rodgers: Cut clerks in charge of saying is there.
J. Aughenbaugh: Well, yet another thankless task that we have now dumped onto the clerks. Have we not?
N. Rodgers: Well, but at least there's some accountability in that.
J. Aughenbaugh: Let's talk about some of the criticisms. Because that's what we're want to do on this podcast. One of the criticisms.
N. Rodgers: I think enforcement.
J. Aughenbaugh: Yeah, enforcement is the big one. There's the enforcement issue because many folks would like to see a body within the judiciary comprised of federal judges from across the courts who can receive complaints, review the complaints and issue, if you will, rulings in regards to potential ethical violations.
N. Rodgers: Do you want to know why I think that that's a problem, real quickly?
J. Aughenbaugh: Yeah, go ahead.
N. Rodgers: Now, we'll get into it when you make your argument later, then I will make my anti-argument of your argument.
J. Aughenbaugh: The new code as we just discussed is very vague about a justices spouses, personal or political activities. What we just mentioned are criticisms from those on the left of the ideological spectrum.
N. Rodgers: Guess at the criticism from the right?
J. Aughenbaugh: Oh yeah, go ahead.
N. Rodgers: There shouldn't have been a code at all.
J. Aughenbaugh: That is correct.
N. Rodgers: Because that is bowing to what we call woke pressure.
J. Aughenbaugh: Yes.
N. Rodgers: The pressure from the left to make a code by its own lonesome on some folks on the right were like, well then we shouldn't.
J. Aughenbaugh: Well, in particular, those on the right are just the court was caving in to the left. The left really isn't interested in having a code. The left was interested in trying to, again, push the court back into decisions and rulings that the left likes. They're going to do this by calling into question the court's legitimacy because it's populated by a bunch of unethical hacks. For those on the right.
N. Rodgers: On the right they're correct. It's a dangerous game to play to call into question the legitimacy of the court.
J. Aughenbaugh: Yes.
N. Rodgers: Because watch, be careful about where that takes you.
J. Aughenbaugh: I'm going to mention something that just happened the day before we recorded this episode. The Senate Judiciary Committee yesterday finally waded through all of the amendments to the motion to subpoena the benefactors of the wealthy trips for Alito and Thomas. I'm going to say this on the record. Democrats in the Senate are going to rule the day that they issued those subpoenas to have those folks testify, because the next time the Republicans are in charge of the Senate and have control of the Senate Judiciary Committee, they're going to be issuing subpoenas to investigate anybody who gave any money, any contract, any book contract, any speaking engagement for any liberal member of the Supreme Court. At some point in time, this has to stop.
N. Rodgers: Oh, yeah, we'll investigate you. That's very playground and that's not how we should be conducting ourselves as a government in whole.
J. Aughenbaugh: Others criticized the fact that it was a consensus document. Because it was a consensus document, it didn't break any new ground.
N. Rodgers: They were going to get all nine to agree it wasn't going to something. If they weren't going to say drop in the middle and we all have a unicorn. Because then we would all go wait, what? They were never going to do that. It was always going to be as generic a document because it goes to your point of the more specific you get, the more complicated it gets. Actually, people think that being specific is going to make things uncomplicated. That's true when you're making a list to go to the grocery store. It's not true with anything else. The more clear you make a rule, the harder it is for the rule to be enforced.
J. Aughenbaugh: I'm even thinking about that right now as I negotiate with my ex wife in regards to our daughter's Christmas list. You would think a Christmas list would make.
N. Rodgers: You get these things and I get these things, all set all. You guys are basically having summits.
J. Aughenbaugh: Now we're, why do you get to buy x? Or you know that costs $150. What are you buying that totals $150?
N. Rodgers: Exactly. That thing's going to be her favorite and you're going to be the one that gave it to her. Awesome.
J. Aughenbaugh: I'm the one who's buying her a piece of clothing. You know how well that goes over with an 11-year-old?
N. Rodgers: Thanks for the socks, dad. But do you like the code or do you not like the codes? Or is that too simple a question?
J. Aughenbaugh: In some ways I don't like the either or nature of it.
N. Rodgers: Are there chunks you like and chunks you don't like?
J. Aughenbaugh: I don't like the lack of enforcement. Again, leaving it up to the individual justice, I think. Because let's face it, in the legal profession in all 50 states, if a lawyer or judge misbehaves, there is a standalone committee that reviews the complaints.
N. Rodgers: And you can be disbarred.
J. Aughenbaugh: Many of the complaints are worthless.
N. Rodgers: They're cheesy. They didn't win my case. Well, yeah you know what, 'cause your case was unwinnable. Move on, or whatever. Or things like that where people say I don't like this person, but that doesn't rise to misconduct. Being unlikable as a lawyer. Well, have you ever met a lawyer, or a doctor, or whoever? Like lots of people in the profession are great and likable, and lots of people in the profession are not great and not likable. But that's not a reason to disbar me. It has to rise to a certain levels of criminality or whatever. Inappropriate behavior, unethical, immoral behavior.
J. Aughenbaugh: That's like filing an ethics complaint against a doctor because the doctor comes in and says, you have cancer. The doctor didn't cause the cancer. Could the doctor have said it perhaps in a kinder, gentler manner? Perhaps. But the fact that the doctor came in and said.
N. Rodgers: Looks like you're dying.
J. Aughenbaugh: I got some bad news.
N. Rodgers: I'm sorry, what?
J. Aughenbaugh: I got some bad news Mr. Gen Pau, you got two months to live. Damn. It's like he's into that a little bitter. If a judge goes ahead and gives you the maximum sentence allowed by law, well, that's the discretion given to the judge.
N. Rodgers: That's not unethical behavior on the part of the judge unless you can show that the judge gave that to you because of personal dislike, or racial animus, or gender animus.
J. Aughenbaugh: Right before he went ahead and gave you the max sentence, he went ahead and criticized you for the clothes you wore.
N. Rodgers: He said, you may be the stupidest person ever, you're going to prison for life. You're like, wait a minute, what? No. I agree with you. I think that an extra body or a body that could hear complaint would be a very useful. It would go a long way towards transparency too. It would go a long way towards the institution looking like it cares about what people think. Because right now the Supreme Court doesn't always look like that.
J. Aughenbaugh: No, and for our listeners this is where Nia and I disagree. You can correct me if I'm wrong, Nia. Your primary value in this discussion, the value that you would like to see emphasized and furthered the most is transparency.
N. Rodgers: Yes.
J. Aughenbaugh: In general, I tend to agree with you but then the institutionalist in me kicks in.
N. Rodgers: I don't care about your institutionalism.
J. Aughenbaugh: That's fine. But the institutionalist in me finds this really odd because if the court did issue the code of conduct in response to the Senate, it makes me wonder how the Senate would respond if the United States Supreme Court then started to issue rulings telling the Senate how it should conduct its business.
N. Rodgers: Yeah, it wouldn't. It would say stay in your lane Supreme Court. And I hear you on that argument because it does make sense to me that the institution should be allowed to function as an independent body of itself or it isn't in fact an independent body if it is being told what to do or it has to react in terms of the Senate. The threat there is from the Senate saying, you know what, maybe we won't confirm any more justices until we see a code of conduct, or we see some movement, and I hear you on that, but I counter with. The Senate is made up of people who are elected and the Supreme Court serves for life. It is already an institution that is insulated from that level of accountability. Somebody at some point may be not elected as a senator. I know it practically never happens. But it's possible. It's possible within the system that we currently have, it is significantly harder to punish the Supreme Court justice.
J. Aughenbaugh: Yeah. Because absent impeachment.
N. Rodgers: You don't. You can't.
J. Aughenbaugh: Yes.
N. Rodgers: But I hear you should it allow the other branches, executive or legislative?
J. Aughenbaugh: Legislative.
N. Rodgers: To force it to act in certain ways, and I don't know, that's tough for me. I mean, I hear you on it, but there's another part it's like but they're lifetime appointees and it's a different standard. I don't know, I'd have to think about that. That's where this civil discourse thing comes in. I think you're wrong, but I can't figure out why.
J. Aughenbaugh: No, but in this instance, both of us can be right.
N. Rodgers: Well, that's true, we can both be right and both be wrong. We have multitudes.
J. Aughenbaugh: In the listeners, what Nia is pointing to is what is described by scholars as the counter majoritarian problem of our federal judiciary.
N. Rodgers: Is that what's called?
J. Aughenbaugh: Counter majoritarian, the framers created the judiciary to be independent as you described it. It is independent in regards to accountability via a democratic process like elections. Now, the reason for it, as Nia, you and I've discussed at length, is you want an independent judiciary who can tell the political branches when they have run afoul of the US Constitution. When they.
N. Rodgers: Theoretically, in a non political manner.
J. Aughenbaugh: They violated civil rights, civil liberties, etc. On the other hand, in a democracy, and this was one of the criticisms of the anti Federalists of the then proposed constitution. You can't say that you have quote - unquote, a democracy when you have one whole branch of the federal government. Which has the power to correct the behavior of the people's elected representatives, unaccountable to the people. When you have the political branches potentially infringing upon that independence. Well, So this is where it gets difficult.
N. Rodgers: It's a Gordian knot, somebody get me some scissors.
J. Aughenbaugh: The legitimacy of the court, according to many scholars, is its primary power. Because if it's not viewed as legitimate, then people are less likely to follow its rulings.
N. Rodgers: Exactly.
J. Aughenbaugh: Now are the Senate Democrats questioning the legitimacy of some of the members of the current court for political gain? Shocking. [LAUGHING].
N. Rodgers: I know, no I do not believe that there's gambling [OVERLAPPING].
J. Aughenbaugh: On the other hand, this is a legitimate concern, because even people who are not democrat, who are not liberal. We'll acknowledge that some of the behavior of the justices over the last 15 to 20 years has called into question, you know, the ethics of not only individual members but of the institution itself.
N. Rodgers: Well, if you make it up to the members, and even the Chief Justice can't come to your office and say, Aggie, about the strip poll in your office. I may I have to ask you to take that down. It's bothering the other justices, it's noisy, it's loud in here the partying, it's got to stop. I mean, I can't imagine you and J. Robb having that conversation. But what I can't imagine actually, is J. Robb coming to you and saying, Aggie your book deal needs to be disclosed in full. Because we don't need politico finding out that your book deal had an extra writer in it, that if you got it done a month early, you got an extra $10,000,000,000 or whatever. Because they were trying to find a way to influence.
J. Aughenbaugh: The criticism of Sotomayor where she had her staff tell places where she gave speeches.
N. Rodgers: That they had to buy copies of her book.
J. Aughenbaugh: Book.
N. Rodgers: That they would be there for signings.
J. Aughenbaugh: Would be there for signings, but with every additional copy of the book that is purchased.
N. Rodgers: She makes money.
J. Aughenbaugh: She makes money, that just looks bad.
N. Rodgers: Exactly or I'm coming to you and saying in Aggie, I appreciate that you want to write a textbook, but it's got to be open access. Because you can't make money, if you wrote a textbook, people would use it just because you're a Supreme Court justice. Because it carries more weight than other people in the world. Because you have this immense responsibility. You also have this immense power to influence.
J. Aughenbaugh: Yes.
N. Rodgers: There is some real complicated. I hear you on the difference, I mean on the complication between transparency and institutionalism.
J. Aughenbaugh: Yes.
N. Rodgers: Does you want the institution to be able to act independently and in its own way? You don't want the Supreme Court to be an institution that acts just like Congress because otherwise it's just to have a member of Congress.
J. Aughenbaugh: I mean.
N. Rodgers: Might not just have it be a branch of Congress.
J. Aughenbaugh: It could be a committee, it could be a committee of Congress.
N. Rodgers: Then we just don't have a Supreme Court that's horrible. Well, we don't want that system because the system we have is actually working well. I don't know if it's working well right now, but it generally speaking, works pretty decently, I think.
J. Aughenbaugh: But I mean, the idea of judicial independence is one that has been copied and used around the world.
N. Rodgers: Exactly and it's the standard, the standard is in the world is, oh, we don't elect justices because we want them to be independent.
J. Aughenbaugh: Independent, you know.
N. Rodgers: But if you're going to have people be independent, then you need to have some guide.
J. Aughenbaugh: Yes.
N. Rodgers: Otherwise then they gets Wild Westy up in here.
J. Aughenbaugh: Then they need to act.
N. Rodgers: In a consistently ethical manner.
J. Aughenbaugh: Manner, because, you know, as you pointed out. The only way to hold them accountable is the impeachment process. As we've come to find out, the impeachment process is not, isn't all that effective.
N. Rodgers: Even if you get impeached, it doesn't necessarily mean that you're removed.
J. Aughenbaugh: No, I mean, because you got to be found guilty in the Senate. As I tell my students, there's only been one Supreme Court justice, Chase. Early on in our country's history who was impeached, but he was not found guilty.
N. Rodgers: At that point, he's like, whatever and he goes on and does his job.
J. Aughenbaugh: His job. You imagine the freedom you get after you've been impeached, but you've not been found guilty.
N. Rodgers: Oh my goodness, the things you would do after that.
J. Aughenbaugh: That was Mitt Romney's point. When after the second Trump impeachment and he was not found guilty, that was Mitt Romney's lament.
N. Rodgers: Well and Bill Clinton.
J. Aughenbaugh: Now there is nothing that's going to go ahead and stop him.
N. Rodgers: Bill Clinton didn't go on to be a dictator. But there's the danger of that if you're not found guilty, then that sort of takes the governor off of your behavior I would think.
J. Aughenbaugh: Oh my goodness, sure. This was their best shot and they couldn't take me down.
N. Rodgers: Now I can do whatever I want.
J. Aughenbaugh: Yes.
N. Rodgers: I would like to mention one other thing that I think we probably lightly disagree on.
J. Aughenbaugh: What's that?
N. Rodgers: I think that the justices are somewhat political in action. You have said to me that, yeah Nia, but they're not in certain cases. I appreciate you saying that and I think we lightly disagree in that area. I think they are more politically motivated, I think, than you think they are. Maybe you just have a longer view of their actions over times than I do.
J. Aughenbaugh: Your perspective on the behavior of justices falls more in line with the standard view of most political scientists. Most political scientists believe that judges are political actors. This is known as the attitudinal or behavioral perspective, which basically says that judges are just as political as members of congress and presidents. In fact, they are more easily predicted in regards to their attitudes over time. For me I think there are enough examples of Supreme Court justices who followed a different perspective, which is known as the legal. Then there's a third perspective that I think is well represented by the current Chief Justice. It's the institutional or environmental perspective. The current Chief Justice John Roberts, I think personally is a very conservative person. But he often votes and casts opinions or writes opinions that is concerned about the court institutionally. I think Chief Justice John Roberts is the main reason why on November 13th, we got a code of conduct.
N. Rodgers: Because he's trying to protect the institution from criticisms not individual justices.
J. Aughenbaugh: Because if it was left up to Thomas, Alito, Sotomayor.
N. Rodgers: They would not have answered the call, probably.
J. Aughenbaugh: Yeah they would have never. But Roberts is concerned about the institution. I think there's plenty of evidence to support your particular perspective. I just I'm aware of some justices who are not or were not as easily characterized as political. Now, let's also be very clear, one's method of doing their job, strict constructionist versus loose. You can be faithful to that perspective and it will lead you to results that will be congruent with one's political views. Scalia being a strict constructionist, usually led to conservative outcomes. Now, occasionally it led to liberal, just like Ginsburg was a loose constructionist. Usually led to liberal outcomes, or outcomes favored by liberals. Occasionally, not so much but nevertheless. They could go ahead and claim, I'm faithful to the method, but it was satisfying their political, if you will, preferences. I think there's plenty of evidence to support your view. I just go ahead and argue that at times there's too much evidence to suggest that justices will sometimes cast votes and write opinions that, in their heart of hearts, truly disagree with their political preferences.
N. Rodgers: I'm okay with you being wrong. I'm kidding. I hear you on that, probably, because it's so hard for me to separate myself from my political and social views. That it's hard for me to imagine other people doing that. Then I get reminded when somebody says, there's an election this year. That the vast majority of people in the world don't care about this at all. They don't care about the government, they don't care about politics, they don't care about that stuff at all. I'm like no you should care, these things are really important. Maybe they are and maybe they aren't. It's a good reminder for me that not everybody puts that front and center so much of the time.
J. Aughenbaugh: I'm going to give you another reminder, something you have said to me, which is you've seen me lecture, teach classes and you know where I stand generally on almost every political issue. But you have remarked to me that you have watched me give lectures and teach classes, where you can easily see how students have no idea where I stand politically. Because the way I conceive my job is it's not important.
N. Rodgers: It's influential in a way that is inappropriate in the classroom.
J. Aughenbaugh: That's right.
N. Rodgers: You're not supposed to be teaching kids what to think. You're supposed to be teaching them how to think.
J. Aughenbaugh: Right, and it's possible.
N. Rodgers: Drawing on your own experience. I do that when I'm in the library setting.
J. Aughenbaugh: Because when a student comes to you and says, Nia, I have this particular topic that I want to write on for a paper.
N. Rodgers: From this particular point of view, which is different than your point of view then I have to say okay, well let's find information.
J. Aughenbaugh: That's right.
N. Rodgers: I don't get to tell you what to think, I only get to tell you how to think and how to find information.
J. Aughenbaugh: How to find information, so that you can write the paper you want to write. Not the paper you want to write, Nia.
N. Rodgers: It's okay. That's a fair point. If I can do it, the justices can do it. But I'm better at it than they are.
J. Aughenbaugh: Well done.
N. Rodgers: That is the rock upon which I'm going to stand. Hey, thanks Aughie.
J. Aughenbaugh: Thank you, Nia.
You've been listening to civil discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.