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May 05, 2022


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John Steele

Steve, is your argument that but for the absence of a binding ethics code the leak would not have happened?


Lubet's point is that, if a Justice appointed by a Democrat committed an ethical violation of historic significance and violated the most fundamental norms of the court, it is the fault of the Republicans; here, for appointing Roberts.

THis is because Roberts believes that an attempt to supplant the Constitution with an unenforceable ethics code would have prevented a Justice appointed by a Democrat from committing an obvious violation. (This is not to say that Lubet is correct that it was a Justice; but, that seems to be his thesis.)


Correction: "Lubet believes."


No, John, that is not what I am saying. There are many factors that would cause a justice to leak a draft opinion, and it is more likely to happen when there is a long history of an accountability-free environment. In an environment where everyone makes their own rules, with no accountability, some of their choices may be, shall we say, sub-optimal.

And btw, I have never advocated a "binding" ethics code for SCOTUS, which would be impossible. Rather, I believe a court-adopted code would inform the public of the justices' aspirations for their own conduct. Just look at the Ginsburg example, where she could not even bring herself to apologize for what she called "ill-considered" comments.

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