Tuesday morning’s Senate Judiciary Committee hearing about the need to create a binding set of formal ethics rules for the U.S. Supreme Court sounded all sorts of familiar notes. There was some throaty hollering that Sen. Chuck Schumer made the Supreme Court unethical by quoting Justice Brett Kavanaugh at Justice Brett Kavanaugh, and some angry but inscrutable ranting about the liberal media’s complicity in the Dobbs leak. Republicans’ defenses of an Imperial Court that operates on the theory that the justices’ ethics are the justices’ business were either deflections or arguments that justices are essentially infallible gods.

The deflections are not worth parsing. The ideology—that the court is the one branch of government so lofty and perfect and sacred that it need not abide by any rules—is very on-brand for the current GOP. So are the lies designed to make the liberal justices look equally complicit in this mess. But it flies in the face of ample evidence amassed by professor Steve Vladeck and others that Congress has set the rules for the justices for centuries, including forcing them to ride circuit, docking their pay, adding or subtracting members, and limiting their jurisdiction. Also, justices have testified before Congress dozens of times, including on judicial ethics issues. The claim that separation of powers concerns and judicial independence require the court to send Federalist Society representatives to testify about the court’s independence is ultimately hilarious but dopey.

Coughing up a scattershot tapestry of Rules We Try to Consult At Times is an insufficient response to this problem. That fact was on display Tuesday as Republicans in the Senate clamored to paint Justices Ruth Bader Ginsburg and Stephen Breyer as even more corrupt and irresponsible than the court’s conservatives. But each example of a lavish trip or a gift—even if it was taken or received by a liberal justice—only served to prove their own case. At present, and in the absence of any semblance of a coherent and enforceable set of ethical rules for the justices, every scandal or not-scandal or gift or grift is inevitably treated the same, which is that it is ignored. The GOP’s freewheeling whataboutism does nothing but strengthen the case for having binding rules for everyone.

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Every reported ethics violation that has been surfaced in recent weeks is treated as of-a-kind by the press, the advocacy groups, and the defenders of the justices. Each one is met with identical fury on the left or defended with the same banalities from the right. Justice Clarence Thomas’ acceptance of decades’ worth of undisclosed (and thus certainly illegal) gifts from a donor with at least two cases before the court (and who currently houses his mom) is viewed as being equally as scandalous as Justice Neil Gorsuch’s land deal with a major player in court advocacy, which is then treated the same as Jane Roberts, the chief justice’s wife, drawing a huge headhunting salary for placing high-value people in high-value jobs.

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But these scandals or nonscandals do not all fall in the same bucket. Some are even arguably defensible under the current checkerboard regime of advisory rules (Gorsuch’s deal, for example), and some are clearly not (Thomas’ private flights). When you line up the defenses proffered by the justices (or their proxies—one of whom appeared in an actual painting with the alleged grifter and alleged griftee), the problem becomes abundantly clear: Without a biding, coherent rulebook, Thomas’ claim that he broke no rule because he’s friends with the donor, or that he felt OK not disclosing because some unnamed guy once told him he didn’t need to, and so his form is correct, is no more compelling than Gorsuch claiming that he indeed filled out his own forms correctly. Jane Roberts’ conduct may or may not represent pay-to-play access-seeking, but it might also have been formally permissible under the existing guidance. Transparency and disclosure rules don’t just exist to alleviate public concern about judicial behavior. They also protect the justices themselves from being treated as if every single infraction is functionally a felony murder.

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In fact, arguably no onestands to benefit from a clear set of standards more than the justices. When a public official is accused of misconduct, their best defense is always: “I followed the rules.” That response becomes unavailable when there are no rules, or when the rules require tasseography to understand. Nor is it possible to gauge just how far a justice stretched the rules when there is no baseline standard for comparison. Every new story joins the ever-growing miasma of “the Supreme Court’s ethics scandal,” its import or ordinariness nearly impossible to gauge. Thomas mistakenly writing “Ltd.” instead of “LLC” on his forms, for instance, gets lumped in with his outrageous refusal to disclose millions of dollars’ worth of luxury trips from Harlan Crow. Progressive groups seize on each exposé with equal vigor, which is fair play when the code of conduct amounts to ¯\_(ツ)_/¯. Conservatives, on the other hand, play up the little stuff while ignoring the bigger violations so they can chalk it all up as another partisan nothingburger. There’s little sense of scale or proportion, and regular citizens can’t be expected to create their own taxonomy of rule-breaking. Not even judges can identify the line between what is right and wrong, as former federal judge Michael Mukasey—a GOP witness—inadvertently admitted during the hearing:

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Mukasey: If I were a district judge and somebody wanted to fly me on his private plane on a vacation with his family, I were friendly with that person, would I have refused and endangered the friendship? I’m not sure that I would’ve pic.twitter.com/nKNg1wfnuA

— Acyn (@Acyn) May 2, 2023

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The Jane Roberts story perfectly encapsulates this problem. She is a legal recruiter who, we now know, earned more than $10 million in commissions over an eight-year period. A whistleblower at her former recruiting form filed a complaint about this haul, speculating that her success was partly attributable to the fact that she’s married to the chief justice. This complaint resonated chiefly because her husband didn’t disclose it. Why didn’t he? Because he decided he wasn’t obligated to, based on his own personal exegesis of whatever rules he chose to consider that one day. And why didn’t he recuse himself in cases that involved his wife’s firm? The best explanation that the Supreme Court could come up with is that Roberts “consulted” a 2009 advisory opinion, based on the code of conduct that applies to other judges, saying he didn’t have to.

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Imagine if any other public official were entitled to this kind of choose-your-own legal conclusion. We wouldn’t be wrong to assume they were putting their own interests above transparency. Is this the best way to run a court? A court, mind you, that has awarded itself near-unlimited power with zero accountability? We think not.

Republican senators spent a lot of time on Tuesday whining that Congress would intrude upon judicial independence by imposing a code of ethics. Set aside that one prominent, bipartisan bill under consideration merely asks the Supreme Court to create and enforce its own code. The contemporary Republican definition of “independence” is pretty close to meaning “monarchical.” That is not what the framers envisioned. As UVA professor Amanda Frost pointed out during the hearing, the Constitution required the creation of a Supreme Court, but left almost everything else—including its size and its jurisdiction—to Congress. There is no provision that awards the court singlehanded control over its own internal rules, as there is for the House and Senate. The framers wanted both chambers of Congress to set rules for their own operation. And they wanted Congress to set rules for the Supreme Court, understanding that an entirely unelected institution needed checks put in place by a democratic branch.

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Heeding the framers means returning to this system. We seem to have mistakenly ceded complete responsibility to protect the integrity and independence of the Supreme Court to the court alone, and some of them will go down in history as believing themselves answerable to nobody. But all three branches of government have a responsibility to ensure that the court is acting honorably. Every citizen who cares about the future of the rule of law has skin in this game. It’s not in anyone’s interest to proceed with impressionistic rules that are interpreted subjectively and enforced against none, but it is particularly not in the interest of the justices themselves. In a democracy, everyone should have the tools to measure just how far a justice has drifted from their ethical obligations. This isn’t—with all due respect to Sen. John Kennedy—a “hurt feelings report,” as he put it on Tuesday. This is about placing the rules above feelings, for everyone’s sake, and for the court’s own legitimacy, too.

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