Opinion: Democrats Challenged High Court to a Battle of Wits — and They Lost

The United States Supreme Court looked to have caved into demands from Congressional Democrats to establish a code of ethics for the justices.

However, by the end, the Democrats were outwitted by the U.S. Constitution and the Court.

Over the past summer, Democrat Representative Alexandria Ocasio-Cortez of New York suggested that if the Court failed to set a written ethics standard, they should be hauled in front of Congress to explain why.

The representative told CNN, “If Justice [John] Roberts will not voluntarily come before Congress for an investigation, I believe we should be considering subpoenas.”

A few weeks later, Justice Samuel Alito informed Congress in a column in the Wall Street Journals to mind their own business.

“I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court — period,” said Alito to the Journal.

Heritage Foundation legal fellow Zack Smith confirmed that Alito was spot-on.

“The U.S. Supreme Court…is explicitly set out in the Constitution as a co-equal branch of government,” Smith said.

“And so, if Congress were to try to legislate a code of ethics for the Supreme Court, that would be very problematic,” he continued.

Besides, Congress has its ethical dilemmas — including lying to America, insider trading, and a California Democrat who allegedly slept with a Chinese spy.

Nevertheless, Ocasio-Cortez was not satisfied and answered, “Alito’s next opinion piece in the WSH is about to be, ‘I am a little king, actually. The Constitution doesn’t explicitly say I’m not.’”

The following month, the representative wanted the Justice Department to investigate Justice Clarence Thomas for alleged ethics violations.

“Today, we asked DOJ to investigate Thomas for violating the Ethics of Government Act of 1978,” said Ocasio-Cortez on social media. “We are joined by Ranking Members [Jerrold] Nadler [of New York] & [Jamie] Raskin [of Maryland], and Judiciary Members [Ted] Lieu [of California] & Hank Johnson [of Georgia].”

No lawmaker among the five understood the Justice Department functions as part of the executive branch and as a co-equal to the Supreme Court.

Nonetheless, the Court released a nine-page document alleged to be a code of ethics in mid-November. However, it didn’t change how the Court conducts business or how individual justices perform their constitutional duties.

“We shouldn’t put this ‘code of ethics’ in context,” Smith said. Smith also manages The Heritage Foundation’s Supreme Court and Appellate Advocacy Program at the Edwin Meese III Center for Legal and Judicial Studies.

“Many on the left would have us believe that the Supreme Court hadn’t followed any ethical rules before this code was adopted. But that’s just not the case,” added Smith.

“The Judicial Conference of the United States, which is the governing body for the lower federal courts, has long had a code of ethics for federal judges that the U.S. Supreme Court justices have long been voluntarily following. So, this idea that there isn’t a code of ethics and there hasn’t been one just isn’t true.”

Smith said the high Court spelled out how it has continuously operated.

“All that the Supreme Court has really done is just formalize in some sense what they’ve been previously doing. Unfortunately, I think a lot of attacks on the Court, and calls for a code of ethics, isn’t really a concern about ‘good government,’ or ‘full disclosure,’ or anything like that,” said Smith.

Still, Democrats in Congress weren’t satisfied. Democrat Senator Sheldon Whitehouse in Rhode Island, a frequent court critic, claimed the newly adopted rules lack real teeth.

“This is a long-overdue step by the justices, but a code of ethics is not binding unless there is a mechanism to investigate possible violations and enforce the rules,” said Whitehouse.

However, Smith explained that the Constitution provides that very mechanism. It is impeachment.

Realistically, the complaints don’t have anything to do with ethics — they’re about ideology. Since President Trump changed the Court’s ideological makeup, it has been attacked by Dems.

For example, Democrat Senator Chuck Schumer of New York joined a crowd of protesters in March 2020 in front of the Supreme Court Building and made threats directed at Trump’s appointees to the High Court.

“I want to tell you, Gorsuch and want to tell you, Kavanaugh, you have unleashed a whirlwind, and you will pay the price,” shouted Schumer over the PA system as justices heard oral arguments on an abortion case that was pending.

“You won’t know what hit you if you go forward with these awful decisions,” he continued.

Democrats challenged the Supreme Court in a battle of wits but failed to arm themselves effectively for the battle.

They were outsmarted by the Court and ultimately by the founders of America.