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Bipartisan Supreme Court Reform Is Not a Pipe Dream

Liberals hoping to stymie an ultra-right, ultra-activist Supreme Court have one option that hasn’t garnered the attention of institutional makeover proposals such as expanding the court or imposing term limits: Supreme Court ethics reform. It may not be as sexy as the idea of a 13-member court, but tightening judicial ethics, conflict of interest, and good practice and procedure standards would be more constructive, more likely to resonate with the public, and carry far more potential to attract broad congressional support. How would this come to be? Reformers would first have to unite around legislation to end Supreme Court justices’ anomalous status as the only federal judges (or federal officials) who are not subject to an ethical code of conduct. There is good news on that front: Large, bipartisan popular majorities, prominent conservative legal luminaries, and even political leaders favor plugging that gaping loophole in the law. It may not be popular with the court’s conservative bloc, but so be it: Their resistance will telegraph their zest for aggrandizing their power without check. Meanwhile, reformers can take the high ground by spotlighting the justices’ zeal for deploying their unchecked power to gut or cancel popular economic, health, safety, environmental, equal opportunity, workplace fairness, fiscal stability, and democratic governance legal safeguards prized by broad constituencies of everyday Americans. Finally, traction for ethics legislation, which the conservative justices plainly fear and loathe, could induce at least some of them to trim their activist sails.Here’s the problem: Supreme Court ethics reform, its appeal notwithstanding, is not going anywhere.Here’s the problem: Supreme Court ethics reform, its appeal notwithstanding, is not going anywhere. And it will not go anywhere as long as Republican leaders—with some just cause—perceive liberals’ ethics flag-waving as simply a partisan excuse for thwacking conservatives, in particular Justice Samuel Alito, Justice Clarence Thomas, and Thomas’s far-right firebrand spouse, Ginni Thomas. To gain traction, backers of Supreme Court ethics reform must convincingly market their ideas as a credibly bipartisan initiative and craft a proposal that is workable as well as politically salable.Happily, we’re off to a good start in the form of a new book by Ninth Circuit federal Judge M. Margaret McKeown, Citizen Justice: The Environmental Legacy of William O. Douglas, Public Advocate and Conservation Champion. As signaled by the title, the book spends most of its 234 pages documenting how Justice Douglas, while performing his day job on the nation’s highest court, simultaneously made himself, as Douglas Brinkley’s back-jacket blurb proclaims, “the gold-standard conservation activist from the 1930s to the 1970s, by promoting wilderness values and public lands preservation from Arctic Alaska to the Allagash of Maine.” But woven within this account, McKeown elaborates a second theme, that Douglas pursued his environmentalist agenda in incessant defiance of ethics constraints—norms embedded in professional canons, entrenched judicial conventions, and federal statutes.McKeown details Douglas’s “full-on lobbying efforts at the highest levels.” His modus operandi, she observes, “was not an occasional letter, visit, or call to the halls of power [but rather] frequent and persistent until he succeeded.” Drily, McKeown notes that “it is hardly a surprise that his lobbying efforts carried weight [with Kennedy-Johnson Interior Secretary Stewart Udall in particular, since Douglas] participated in multiple Supreme Court decisions in which Udall, in his official capacity, was a named party.”As McKeown chronicles, Douglas is hardly the only member of the federal judiciary to have repeatedly engaged in political moonlighting. But Douglas’s “signature style of advocacy”—a “sustained and intensive lobbying before Congress and the federal agencies on a singular cause that implicated cases before the judiciary”—absolutely broke the mold. It is hardly surprising that Douglas’s ethics misconduct would catch McKeown’s critical eye. She once chaired the federal Judicial Conference Codes of Conduct Committee, a post to which she was appointed by Chief Justice Roberts. McKeown’s account could prove helpful to reformers seeking to channel rising public skepticism about the justices’ partisan impartiality into momentum for a robust reform initiative, in two ways.First, the book illuminates the fact that Supreme Court ethics reform is not some off-the-cuff Democrat ploy; rather, it will close a loophole that appointees of both parties have exploited for centuries—multiple justices, eminent liberals no less than conservatives, have broached conflict-of-interest lines between judging and politicking. In particular, the ostentatiously liberal Douglas’s egregious misadventures credibly portray him as the poster child for the kind of ethical breaches that cry out for Supreme Court justices to be subjected to the same code of conduct with which their lower court colleagues have functioned comfortably for decades.Moreover, as McKeown details in her book, as well as a December 2021 Yale Law Journal online article in which she expanded on her ideas, the foundation structure for a new reform effort is already in place. While there may be no comprehensive code of conduct applicable to Supreme Court justices, there are ethics provisions governing lower courts on the books already, which, if complied with, could go a long way toward bringing errant justices’ comportment into line with public expectations. In this way, new ethics legislation may be cast as a measure that fills in gaps and strengthens the architecture of the judiciary instead of burning it to the ground. New ethics legislation may be cast as a measure that fills in gaps and strengthens the architecture of the judiciary instead of burning it to the ground. Second, as McKeown chronicles, the historical record undermines the justices’ insistence that a mandatory code of conduct would either hamper their ability to function or encourage the notion that such rules would be an unconstitutional invasion of the court’s independence. The court has consistently accepted and claimed to comply with ethics requirements that Congress has made applicable to it, as well as with the code of conduct promulgated for lower courts by the Judicial Conference.In 1991 and 1993, responding to heightened public pressure, then-Chief Justice William Rehnquist orchestrated written public statements detailing how the court interprets and will apply to its members ethics code provisions governing salary-supplementary outside compensation in a “resolution” and, on recusal, in a “Statement of Recusal Policy.” The latter went beyond the Judicial Conference code language, by specifying that individual justices must “recuse from all cases in which … firms [appear before the court] in which our relatives are partners, unless we have received from the firm written assurance that income Supreme Court litigation is, on a permanent basis, excluded from our relatives’ partnership shares.”In his 2011 annual Year-End Report on the Federal Judiciary, Chief Justice Roberts asserted that he and his colleagues “follow the same general principles respecting recusal as other federal judges,” even though underscoring that their acceptance is “voluntary.” Roberts marshaled the justices’ voluntary embrace of these standards as evidence that codifying in law their application to the court is unnecessary and/or unconstitutional.But history cuts against Roberts’s defense of his court’s exemption from mandatory controls. While he and his colleagues assert fidelity to legal ethics requirements in principle, they do not always or uniformly comply in practice. Hence his contention that enacting an enforceable code would have no real-world benefit comes up short. More to the point, the fact that Supreme Court justices have long, for the most part, as McKeown notes, adhered to legal requirements prescribed by Congress and the Judicial Conference belies his insinuation that, if made mandatory, such rules would interfere with the court’s work.The long history of judicial ethics laws also undermines the current justices’ contention that new restrictions could unconstitutionally invade the court’s independence. Statutory ethics restrictions for the court were enacted as long ago as 1792, “when,” McKeown relates, Congress mandated recusal for all federal judges and justices, “in cases where a judge has an interest or has previously served as a counsel for a party,” and as recently as April 2022, when President Biden signed into law a Courthouse Ethics and Transparency Act, which requires federal judges and justices to file within 45 days reports on securities trades and to post their financial disclosure reports on a searchable online database. No one, on or off the court, has suggested that its members’ voluntary compliance with enacted ethics measures has thrown a monkey wrench into the court’s functioning. Moreover, deference to long-standing practice has been a staple of constitutional interpretation at least since Chief Justice John Marshall famously rejected, in 1819, a constitutional challenge to the Bank of the United States, partly on the ground that a constitutional claim that would reshape “the respective powers of those [branches] who are equally representatives of the people [should ordinarily] be put at rest by the [established] practice of the Government.”While McKeown’s expert historical survey of the judicial ethics landscape could thus be helpful to current reformers, there are aspects of her analysis that disregard why, as Forbes magazine reported, even before the court’s summer 2022 obliteration of long-standing abortion, environmental, and voting rights precedents, more than 60 percent of Americans “view the Court as politicized [and] partisan.” She casts Douglas’s immersion in politics as a thing of the past, that “today would find little traction.” In her Yale Law Journal article, she downplays the current drive for tightening judicial ethics controls, at one point insisting that “modern incidents of partisan extrajudicial entanglement conduct pale in comparison to the overt political entanglements” common in the first six decades of the twentieth century.  She acknowledges that “the question of the Supreme Court as a political institution certainly [has] heated up, [and] “even the Justices themselves are joining the debate.” But she concludes, “While such current debates are important, … they clearly appear relatively minor in the shadow of the ethics dilemmas of centuries past.… It is not pollyannaish to suggest that sensitivity about political involvement and the nature of extrajudicial activities in light of historical realities indicates an optimistic trend line.”McKeown’s rosy-colored view of our current moment runs counter to the trend line of public take on the court’s impartiality and freedom from political and partisan taint.McKeown’s rosy-colored view of our current moment runs counter to the trend line of public take on the court’s impartiality and freedom from political and partisan taint. It may be that this discrepancy can be written down to the fact that McKeown is examining a different problem. “Extrajudicial activities,” such as the penchant of Douglas and his contemporaries and predecessors to moonlight as advocates are not why a September 2022 Pew survey found that 53 percent of Americans—an unsurprising 70 percent of Democrats and a surprising 37 percent of Republicans—believe that the justices “are doing a poor or only fair job of keeping their political views out of how they decide major cases.”And errant off-the-court meandering of the sort that defined Douglas’s is not what Justice Elena Kagan had in mind when, just prior to the court’s current term, she leveled an unprecedented public fusillade at her conservative colleagues—confirming that “people have a right” to harbor skepticism about justices who “don’t act like courts” and admonishing that “the court shouldn’t be wandering around just inserting itself into every hot button issue in America, and it especially, you know, shouldn’t be doing that in a way that reflects one ideology or one … set of political views over another.” Nor are extrajudicial misdeeds what drove 72 percent of respondents in a March 2022 C-SPAN poll to favor adoption of a code of ethics for the Supreme Court, like that in place for lower federal courts. In short, the current spike in skepticism about the court’s impartiality and support for ethics reform arises from what the conservative justices are doing when they have their robes on—how they are doing their day job. The most plausible vehicle for a credibly bipartisan initiative would build on a one-page “Supreme Court Ethics Act,” introduced in the last Congress by Senator Chris Murphy and by Representative Hank Johnson. This bill would simply direct the Judicial Conference to issue a code of conduct applicable to Supreme Court justices as well as lower court federal judges. If such a bill were to pass, it would address at least one of the flash points in the current furor. The existing Judicial Conference Code requires lower court judges to recuse from “any proceeding in which his impartiality might reasonably be questioned,” requiring recusal if “the judge or the judge’s spouse … is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding. A law subjecting Supreme Court justices to a code of conduct, substantially mirroring the existing Judicial Conference code, could precipitate reversal of Justice Thomas’s refusal to recuse from cases involving his spouse’s efforts to overturn the 2020 election. Enactment of such a bill would also give the Judicial Conference’s prescriptions the force of law and the blessing of Congress, which would surely encourage all judges and justices to take them seriously.The Murphy-Johnson bill contained a proviso that the Judicial Conference code could have different provisions for “different categories” of judges or justices. That proviso was designed to deflect one of Chief Justice Roberts’s main arguments against ethics legislation covering the Supreme Court, namely, that the justices have unique concerns, different from those of lower court judges. A better way of mooting that contention, and muting constitutional separation of powers vulnerability, would be to assign the Supreme Court itself the job of promulgating the conduct standards for its members. Taking that route could also likely reduce enforceability concerns; it seems probable that justices would be especially disinclined to evade rules they had crafted for themselves.But regardless of changes in the substance of existing judicial ethics standards, the primary benefit of a simple code of conduct initiative would be political—its prospects for gaining legislative traction and stimulating wide public support would get the attention of the justices.  There is good reason to believe that such a bill could attract Republican support. In February 2021, Senator Lindsey Graham of South Carolina co-signed, with Rhode Island Democrat Sheldon Whitehouse, a joint letter to the chief justice, asking, among other pointed questions, “What plans, if any, does the Court have to adopt a code of ethics,” and “If it has no such plans, what justifies the Court in having a lower disclosure standard than the other branches of government?” Five months later, Louisiana Republican John Kennedy co-authored, with Whitehouse, a similarly worded letter to Attorney General Merrick Garland noting that federal judicial disclosure requirements are “significantly less stringent” than those adopted by the legislative and executive branches and that “even those requirements do not formally apply to the justices of the Supreme Court.” Congress’s April 2022 enactment of the above-noted Courthouse and Transparency Act, by overwhelming majorities in both houses, suggests that Republican sentiment favoring some measure of Supreme Court ethics reform could extend much further. Another good omen could be the successful negotiation of legislation substantially strengthening the Electoral Count Act, led by Senators Joe Manchin of West Virginia and Susan Collins of Maine. This bipartisan success story, strongly opposed by election-denier Republicans, demonstrates that a critical mass of Republicans in Congress can buy into good government, pro-democracy legislation, a frame that could credibly fit a Supreme Court code of conduct proposal.Outside of Congress, prominent Republicans and conservatives have voiced support for such a measure. In May 2022, Federal District Judge Reggie Walton, a George W. Bush appointee, told a conference attended by other federal judges that it is “unimaginable that we have a segment of our federal judiciary that’s not subject to an ethics code.” Judicial ethics expert Gabe Roth recently testified to the Senate Judiciary Committee that, “when I speak to lower court federal judges, almost always off the record, I hear their frustration that the Supreme Court is neglecting its responsibility” to adopt a code of conduct. In November 2021, Nicholas Rostow, former senior official in the Reagan and Bush administrations, wrote in Roll Call that “the Supreme Court needs an ethics code,” noting that such codes “have already proved to be effective guardrails” for Congress and the executive branch, and would be “likely to attract bipartisan support—including at least 60 votes in the Senate to avoid a filibuster.” Rostow wrote on behalf of an organization of prominent conservative and libertarian lawyers, which includes senior legal officials from the Reagan and both Bush administrations. The bottom line: Republican politicians could find it difficult to oppose a commonsensical notion enjoying broad public support, including from their own constituents. It would change the court-reform dynamic in significant ways by pushing it ahead of less publicly popular ideas like court-packing. Perhaps the biggest reason for any lawmaker to pursue this path is that it aligns with the interests of their branch of government and the constituents who elected them to Congress: The enactment of a Supreme Court code of conduct, or even a serious effort to enact such a code—including, say, Senate passage and respectable House Republican support—would, in and of itself, shift the balance of political power between Congress and a Supreme Court that now fancies itself to be the superlegislature supreme.

Liberals hoping to stymie an ultra-right, ultra-activist Supreme Court have one option that hasn’t garnered the attention of institutional makeover proposals such as expanding the court or imposing term limits: Supreme Court ethics reform. It may not be as sexy as the idea of a 13-member court, but tightening judicial ethics, conflict of interest, and good practice and procedure standards would be more constructive, more likely to resonate with the public, and carry far more potential to attract broad congressional support. How would this come to be? Reformers would first have to unite around legislation to end Supreme Court justices’ anomalous status as the only federal judges (or federal officials) who are not subject to an ethical code of conduct. There is good news on that front: Large, bipartisan popular majorities, prominent conservative legal luminaries, and even political leaders favor plugging that gaping loophole in the law. It may not be popular with the court’s conservative bloc, but so be it: Their resistance will telegraph their zest for aggrandizing their power without check. Meanwhile, reformers can take the high ground by spotlighting the justices’ zeal for deploying their unchecked power to gut or cancel popular economic, health, safety, environmental, equal opportunity, workplace fairness, fiscal stability, and democratic governance legal safeguards prized by broad constituencies of everyday Americans. Finally, traction for ethics legislation, which the conservative justices plainly fear and loathe, could induce at least some of them to trim their activist sails.Here’s the problem: Supreme Court ethics reform, its appeal notwithstanding, is not going anywhere.Here’s the problem: Supreme Court ethics reform, its appeal notwithstanding, is not going anywhere. And it will not go anywhere as long as Republican leaders—with some just cause—perceive liberals’ ethics flag-waving as simply a partisan excuse for thwacking conservatives, in particular Justice Samuel Alito, Justice Clarence Thomas, and Thomas’s far-right firebrand spouse, Ginni Thomas. To gain traction, backers of Supreme Court ethics reform must convincingly market their ideas as a credibly bipartisan initiative and craft a proposal that is workable as well as politically salable.Happily, we’re off to a good start in the form of a new book by Ninth Circuit federal Judge M. Margaret McKeown, Citizen Justice: The Environmental Legacy of William O. Douglas, Public Advocate and Conservation Champion. As signaled by the title, the book spends most of its 234 pages documenting how Justice Douglas, while performing his day job on the nation’s highest court, simultaneously made himself, as Douglas Brinkley’s back-jacket blurb proclaims, “the gold-standard conservation activist from the 1930s to the 1970s, by promoting wilderness values and public lands preservation from Arctic Alaska to the Allagash of Maine.” But woven within this account, McKeown elaborates a second theme, that Douglas pursued his environmentalist agenda in incessant defiance of ethics constraints—norms embedded in professional canons, entrenched judicial conventions, and federal statutes.McKeown details Douglas’s “full-on lobbying efforts at the highest levels.” His modus operandi, she observes, “was not an occasional letter, visit, or call to the halls of power [but rather] frequent and persistent until he succeeded.” Drily, McKeown notes that “it is hardly a surprise that his lobbying efforts carried weight [with Kennedy-Johnson Interior Secretary Stewart Udall in particular, since Douglas] participated in multiple Supreme Court decisions in which Udall, in his official capacity, was a named party.”As McKeown chronicles, Douglas is hardly the only member of the federal judiciary to have repeatedly engaged in political moonlighting. But Douglas’s “signature style of advocacy”—a “sustained and intensive lobbying before Congress and the federal agencies on a singular cause that implicated cases before the judiciary”—absolutely broke the mold. It is hardly surprising that Douglas’s ethics misconduct would catch McKeown’s critical eye. She once chaired the federal Judicial Conference Codes of Conduct Committee, a post to which she was appointed by Chief Justice Roberts. McKeown’s account could prove helpful to reformers seeking to channel rising public skepticism about the justices’ partisan impartiality into momentum for a robust reform initiative, in two ways.First, the book illuminates the fact that Supreme Court ethics reform is not some off-the-cuff Democrat ploy; rather, it will close a loophole that appointees of both parties have exploited for centuries—multiple justices, eminent liberals no less than conservatives, have broached conflict-of-interest lines between judging and politicking. In particular, the ostentatiously liberal Douglas’s egregious misadventures credibly portray him as the poster child for the kind of ethical breaches that cry out for Supreme Court justices to be subjected to the same code of conduct with which their lower court colleagues have functioned comfortably for decades.Moreover, as McKeown details in her book, as well as a December 2021 Yale Law Journal online article in which she expanded on her ideas, the foundation structure for a new reform effort is already in place. While there may be no comprehensive code of conduct applicable to Supreme Court justices, there are ethics provisions governing lower courts on the books already, which, if complied with, could go a long way toward bringing errant justices’ comportment into line with public expectations. In this way, new ethics legislation may be cast as a measure that fills in gaps and strengthens the architecture of the judiciary instead of burning it to the ground. New ethics legislation may be cast as a measure that fills in gaps and strengthens the architecture of the judiciary instead of burning it to the ground. Second, as McKeown chronicles, the historical record undermines the justices’ insistence that a mandatory code of conduct would either hamper their ability to function or encourage the notion that such rules would be an unconstitutional invasion of the court’s independence. The court has consistently accepted and claimed to comply with ethics requirements that Congress has made applicable to it, as well as with the code of conduct promulgated for lower courts by the Judicial Conference.In 1991 and 1993, responding to heightened public pressure, then-Chief Justice William Rehnquist orchestrated written public statements detailing how the court interprets and will apply to its members ethics code provisions governing salary-supplementary outside compensation in a “resolution” and, on recusal, in a “Statement of Recusal Policy.” The latter went beyond the Judicial Conference code language, by specifying that individual justices must “recuse from all cases in which … firms [appear before the court] in which our relatives are partners, unless we have received from the firm written assurance that income Supreme Court litigation is, on a permanent basis, excluded from our relatives’ partnership shares.”In his 2011 annual Year-End Report on the Federal Judiciary, Chief Justice Roberts asserted that he and his colleagues “follow the same general principles respecting recusal as other federal judges,” even though underscoring that their acceptance is “voluntary.” Roberts marshaled the justices’ voluntary embrace of these standards as evidence that codifying in law their application to the court is unnecessary and/or unconstitutional.But history cuts against Roberts’s defense of his court’s exemption from mandatory controls. While he and his colleagues assert fidelity to legal ethics requirements in principle, they do not always or uniformly comply in practice. Hence his contention that enacting an enforceable code would have no real-world benefit comes up short. More to the point, the fact that Supreme Court justices have long, for the most part, as McKeown notes, adhered to legal requirements prescribed by Congress and the Judicial Conference belies his insinuation that, if made mandatory, such rules would interfere with the court’s work.The long history of judicial ethics laws also undermines the current justices’ contention that new restrictions could unconstitutionally invade the court’s independence. Statutory ethics restrictions for the court were enacted as long ago as 1792, “when,” McKeown relates, Congress mandated recusal for all federal judges and justices, “in cases where a judge has an interest or has previously served as a counsel for a party,” and as recently as April 2022, when President Biden signed into law a Courthouse Ethics and Transparency Act, which requires federal judges and justices to file within 45 days reports on securities trades and to post their financial disclosure reports on a searchable online database. No one, on or off the court, has suggested that its members’ voluntary compliance with enacted ethics measures has thrown a monkey wrench into the court’s functioning. Moreover, deference to long-standing practice has been a staple of constitutional interpretation at least since Chief Justice John Marshall famously rejected, in 1819, a constitutional challenge to the Bank of the United States, partly on the ground that a constitutional claim that would reshape “the respective powers of those [branches] who are equally representatives of the people [should ordinarily] be put at rest by the [established] practice of the Government.”While McKeown’s expert historical survey of the judicial ethics landscape could thus be helpful to current reformers, there are aspects of her analysis that disregard why, as Forbes magazine reported, even before the court’s summer 2022 obliteration of long-standing abortion, environmental, and voting rights precedents, more than 60 percent of Americans “view the Court as politicized [and] partisan.” She casts Douglas’s immersion in politics as a thing of the past, that “today would find little traction.” In her Yale Law Journal article, she downplays the current drive for tightening judicial ethics controls, at one point insisting that “modern incidents of partisan extrajudicial entanglement conduct pale in comparison to the overt political entanglements” common in the first six decades of the twentieth century.  She acknowledges that “the question of the Supreme Court as a political institution certainly [has] heated up, [and] “even the Justices themselves are joining the debate.” But she concludes, “While such current debates are important, … they clearly appear relatively minor in the shadow of the ethics dilemmas of centuries past.… It is not pollyannaish to suggest that sensitivity about political involvement and the nature of extrajudicial activities in light of historical realities indicates an optimistic trend line.”McKeown’s rosy-colored view of our current moment runs counter to the trend line of public take on the court’s impartiality and freedom from political and partisan taint.McKeown’s rosy-colored view of our current moment runs counter to the trend line of public take on the court’s impartiality and freedom from political and partisan taint. It may be that this discrepancy can be written down to the fact that McKeown is examining a different problem. “Extrajudicial activities,” such as the penchant of Douglas and his contemporaries and predecessors to moonlight as advocates are not why a September 2022 Pew survey found that 53 percent of Americans—an unsurprising 70 percent of Democrats and a surprising 37 percent of Republicans—believe that the justices “are doing a poor or only fair job of keeping their political views out of how they decide major cases.”And errant off-the-court meandering of the sort that defined Douglas’s is not what Justice Elena Kagan had in mind when, just prior to the court’s current term, she leveled an unprecedented public fusillade at her conservative colleagues—confirming that “people have a right” to harbor skepticism about justices who “don’t act like courts” and admonishing that “the court shouldn’t be wandering around just inserting itself into every hot button issue in America, and it especially, you know, shouldn’t be doing that in a way that reflects one ideology or one … set of political views over another.” Nor are extrajudicial misdeeds what drove 72 percent of respondents in a March 2022 C-SPAN poll to favor adoption of a code of ethics for the Supreme Court, like that in place for lower federal courts. In short, the current spike in skepticism about the court’s impartiality and support for ethics reform arises from what the conservative justices are doing when they have their robes on—how they are doing their day job. The most plausible vehicle for a credibly bipartisan initiative would build on a one-page “Supreme Court Ethics Act,” introduced in the last Congress by Senator Chris Murphy and by Representative Hank Johnson. This bill would simply direct the Judicial Conference to issue a code of conduct applicable to Supreme Court justices as well as lower court federal judges. If such a bill were to pass, it would address at least one of the flash points in the current furor. The existing Judicial Conference Code requires lower court judges to recuse from “any proceeding in which his impartiality might reasonably be questioned,” requiring recusal if “the judge or the judge’s spouse … is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding. A law subjecting Supreme Court justices to a code of conduct, substantially mirroring the existing Judicial Conference code, could precipitate reversal of Justice Thomas’s refusal to recuse from cases involving his spouse’s efforts to overturn the 2020 election. Enactment of such a bill would also give the Judicial Conference’s prescriptions the force of law and the blessing of Congress, which would surely encourage all judges and justices to take them seriously.The Murphy-Johnson bill contained a proviso that the Judicial Conference code could have different provisions for “different categories” of judges or justices. That proviso was designed to deflect one of Chief Justice Roberts’s main arguments against ethics legislation covering the Supreme Court, namely, that the justices have unique concerns, different from those of lower court judges. A better way of mooting that contention, and muting constitutional separation of powers vulnerability, would be to assign the Supreme Court itself the job of promulgating the conduct standards for its members. Taking that route could also likely reduce enforceability concerns; it seems probable that justices would be especially disinclined to evade rules they had crafted for themselves.But regardless of changes in the substance of existing judicial ethics standards, the primary benefit of a simple code of conduct initiative would be political—its prospects for gaining legislative traction and stimulating wide public support would get the attention of the justices.  There is good reason to believe that such a bill could attract Republican support. In February 2021, Senator Lindsey Graham of South Carolina co-signed, with Rhode Island Democrat Sheldon Whitehouse, a joint letter to the chief justice, asking, among other pointed questions, “What plans, if any, does the Court have to adopt a code of ethics,” and “If it has no such plans, what justifies the Court in having a lower disclosure standard than the other branches of government?” Five months later, Louisiana Republican John Kennedy co-authored, with Whitehouse, a similarly worded letter to Attorney General Merrick Garland noting that federal judicial disclosure requirements are “significantly less stringent” than those adopted by the legislative and executive branches and that “even those requirements do not formally apply to the justices of the Supreme Court.” Congress’s April 2022 enactment of the above-noted Courthouse and Transparency Act, by overwhelming majorities in both houses, suggests that Republican sentiment favoring some measure of Supreme Court ethics reform could extend much further. Another good omen could be the successful negotiation of legislation substantially strengthening the Electoral Count Act, led by Senators Joe Manchin of West Virginia and Susan Collins of Maine. This bipartisan success story, strongly opposed by election-denier Republicans, demonstrates that a critical mass of Republicans in Congress can buy into good government, pro-democracy legislation, a frame that could credibly fit a Supreme Court code of conduct proposal.Outside of Congress, prominent Republicans and conservatives have voiced support for such a measure. In May 2022, Federal District Judge Reggie Walton, a George W. Bush appointee, told a conference attended by other federal judges that it is “unimaginable that we have a segment of our federal judiciary that’s not subject to an ethics code.” Judicial ethics expert Gabe Roth recently testified to the Senate Judiciary Committee that, “when I speak to lower court federal judges, almost always off the record, I hear their frustration that the Supreme Court is neglecting its responsibility” to adopt a code of conduct. In November 2021, Nicholas Rostow, former senior official in the Reagan and Bush administrations, wrote in Roll Call that “the Supreme Court needs an ethics code,” noting that such codes “have already proved to be effective guardrails” for Congress and the executive branch, and would be “likely to attract bipartisan support—including at least 60 votes in the Senate to avoid a filibuster.” Rostow wrote on behalf of an organization of prominent conservative and libertarian lawyers, which includes senior legal officials from the Reagan and both Bush administrations. The bottom line: Republican politicians could find it difficult to oppose a commonsensical notion enjoying broad public support, including from their own constituents. It would change the court-reform dynamic in significant ways by pushing it ahead of less publicly popular ideas like court-packing. Perhaps the biggest reason for any lawmaker to pursue this path is that it aligns with the interests of their branch of government and the constituents who elected them to Congress: The enactment of a Supreme Court code of conduct, or even a serious effort to enact such a code—including, say, Senate passage and respectable House Republican support—would, in and of itself, shift the balance of political power between Congress and a Supreme Court that now fancies itself to be the superlegislature supreme.

The eviction of Lützerath: the village being destroyed for a coalmine – a photo essay

After Lützerath in Germany was emptied of its residents to make way for the Garzweiler coalmine, protesters occupied the deserted village while waiting for a showdown with the police. The photographer Ingmar Björn Nolting reports from the village that was to become the fortress of an energy companySince 2020, environmental activists have been occupying the trees, fields and houses in Lützerath, a hamlet near the North Rhine-Westphalian town of Erkelenz. They oppose the eviction of the village and the energy company RWE, which wants to extract the millions of tonnes of lignite that lie beneath the village.Lignite mining opponents during a demonstration in Lützerath, on 8 January Continue reading...

After Lützerath in Germany was emptied of its residents to make way for the Garzweiler coalmine, protesters occupied the deserted village while waiting for a showdown with the police. The photographer Ingmar Björn Nolting reports from the village that was to become the fortress of an energy companySince 2020, environmental activists have been occupying the trees, fields and houses in Lützerath, a hamlet near the North Rhine-Westphalian town of Erkelenz. They oppose the eviction of the village and the energy company RWE, which wants to extract the millions of tonnes of lignite that lie beneath the village.Lignite mining opponents during a demonstration in Lützerath, on 8 January Continue reading...

‘Assassinated in cold blood’: the man killed protesting Georgia’s ‘Cop City’

Killing of Manuel Esteban Paez Terán, who opposed training facility, is ‘unprecedented’ in history of environmental activism, experts sayBelkis Terán spoke with her son, Manuel, nearly every day by WhatsApp from her home in Panama City, Panama. She also had names and numbers for some of Manuel’s friends, in case she didn’t hear from the 26-year-old who was protesting “Cop City”, a planned gigantic training facility being built in a wooded area near Atlanta, Georgia.So by midweek, when she hadn’t received a message from Atlanta since Monday, she began to worry. Thursday around noon, a friend of Manuel’s messaged her with condolences. “I’m so sorry,” they wrote. “For what?” she asked. Continue reading...

Killing of Manuel Esteban Paez Terán, who opposed training facility, is ‘unprecedented’ in history of environmental activism, experts sayBelkis Terán spoke with her son, Manuel, nearly every day by WhatsApp from her home in Panama City, Panama. She also had names and numbers for some of Manuel’s friends, in case she didn’t hear from the 26-year-old who was protesting “Cop City”, a planned gigantic training facility being built in a wooded area near Atlanta, Georgia.So by midweek, when she hadn’t received a message from Atlanta since Monday, she began to worry. Thursday around noon, a friend of Manuel’s messaged her with condolences. “I’m so sorry,” they wrote. “For what?” she asked. Continue reading...

Others Take Mandela’s Name in Vain, Not Harry and Meghan

I applaud the work the royal couple does inspired by my grandfather. I abhor those who exploit his legacy for personal gain.

Live to Lead, a Netflix documentary series that Prince Harry and Meghan Markle produced, cites the legacy of Nelson Mandela as its inspiration. Because he was my grandfather, I was contacted recently by an Australian newspaper to comment on this. Call me naive, but I did not suspect that I was being recruited to a press vendetta against the royal couple; I was shocked when my remarks were misused.My statement of an obvious fact—that their struggles, my grandfather’s and Harry and Meghan’s, were hardly identical—was turned into a slight against the couple. When I voiced my annoyance at seeing Mandela’s name and legacy exploited, that too was taken to be an attack on the documentary and the couple.This was far from what I’d meant. In fact, I felt dumbfounded and disheartened to see my name, and my grandfather’s, used to serve a backlash against Meghan Markle, a woman of color who’d had the temerity to marry into the British Royal Family.[Caitlin Flanagan: Harry, Meghan, and the men who hate them]Yes, it upsets me whenever the Mandela name or likeness is used for purely commercial purposes, to sell merchandise without any benefit to the family or the charitable causes he championed. And I will always criticize such cynical profiteering.That’s not what I associate with Harry and Meghan. Indeed, I welcome the inspiration they’ve taken from my grandfather’s legacy for their social activism. I admire them for the courage of their convictions and the good causes they have espoused. Their work resonates with my grandfather’s preoccupation with justice and freedom for all.It touches my heart that what my grandfather achieved decades ago still spurs people to action today, even people at the heart of the Royal Family in Britain. Madiba—Mandela’s nickname in Xhosa—is beloved as “the father of the nation” because he proved that an unfailing commitment to love, forgiveness, and reconciliation can turn the odds in favor of peace and justice.My grandfather was scarcely dead when people started exploiting his legacy. Even at his funeral, South African officials misappropriated millions of dollars earmarked for development work, spending some of it on promotional T-shirts. And so it goes: Every year in South Africa, on Nelson Mandela International Day, clubs use my grandfather’s face on flyers to bring people in. All over the world, in fact, people sell T-shirts with my grandfather’s face on them—some might call it the price of my grandfather being a global icon, but none of the profits go to support his true legacy.By contrast, Harry’s fascination with the life of my grandfather seems not only sincere but also to go back years. Harry has spoken of meeting my grandfather late in his life, and in 2014, he founded the Invictus Games for disabled former servicemen and women. Invictus, which means “unconquerable,” is also the title of a poem, by the British poet William Ernest Henley, that my grandfather used to recite during his 27 years in the apartheid regime’s prison.Mandela spent those years confined to a tiny cell, with no bed and no plumbing, or forced to do constant hard labor—harsh conditions designed to break his resolve. This poem, about the individual’s capacity to find strength within to overcome adversity, was a source of solace and hope to my grandfather.[Helen Lewis: Harry and Meghan are playing a whole different game]Although the paths that my grandfather and Harry took in life were completely different, I can see how the young prince must also have found the poem a comfort for his sense of isolation within the Royal Family. That it inspired him to create the Invictus Games is a testament to the universal nature of my grandfather’s legacy—and Harry was true to that legacy in putting a sports initiative at the center of his charitable work.In apartheid South Africa, sports were heavily racialized. Rugby, in particular, was notorious because the national team, the Springboks, was all-white. We in the anti-apartheid movement saw rugby as a cultural symbol of white-minority rule.Then, soon after the end of apartheid in 1994, South Africa was to host the 1995 Rugby World Cup. My grandfather, by then the country’s first Black president, saw this as an opening that no one else had recognized. To some dismay among his own supporters, Mandela threw his backing behind the Springboks and sent a message that all South Africans should support the team. This bold move broke the wall between the traditionally all-white team and South Africa’s Black communities. It proclaimed once and for all that South Africa was now the multiracial democracy that my grandfather had so long fought for.The symbolism of unity was crucial in that moment, but, of course, not all of our society’s ills could be so easily resolved. Despite real progress in the decades since then, grave inequities persist. In South Africa, entrenched patterns of white racism have not been dismantled. The unemployment rate is still about four times higher for Black residents than it is for white residents; and just 10 percent of South Africans—the majority of them white—own more than 90 percent of the country’s wealth. Legal apartheid has disappeared, but economic apartheid upheld by loopholes in the law persist.Many of the underpinnings of racism and colonialism around the world have not only survived, but been rehabilitated in new and insidious forms. Every year, billions more dollars are transferred out of Africa than are invested in it. Roughly 100 transnational corporations, many of them British, control $1 trillion worth of Africa’s mineral resources. The mining operations of these companies leave a trail of social and environmental damage and human-rights abuses.[Read: Long walk from freedom: Mandela’s grandchildren and a new South Africa]This pattern of exploitation extends across the global South. According to a report from the Business and Human Rights Resource Centre, since 2015 giant companies engaged in mining, agribusiness, and logging have filed 355 largely frivolous lawsuits that human-rights activists call efforts to “intimidate, bankrupt and silence” those in Latin America and Asia who speak out against such abuses. In Malaysia, for example, European courts are enforcing a $15 billion claim on the developing nation’s own oil and gas reserves, based on a century-old treaty dating from the era of colonial control by the British Crown. Western investors in the lawsuit, through the litigation-financing firm Therium, will take the lion’s share of proceeds.  Although the late Queen Elizabeth was a great supporter of my grandfather, and presided over the transformation of the British empire into the voluntary association of the Commonwealth, the Crown’s postcolonial power continues to extend throughout the world. By virtue of its nominal claim to countries such as Canada and Australia, the Crown is by far the world’s largest landowner, with as much as a sixth of the planet’s land area. The Crown is not merely an institution of the British state; it is better understood as one of the world’s most powerful transnational corporations.As the backlash against Meghan Markle illustrates, undermining the legitimacy of this status quo comes at a price. Harry and Meghan’s alienation from the Royal Family, their questioning of its values, and their challenging of its institutional racism are seen as an unacceptable affront to comfortable assumptions about the West’s achievement of a “postracial” society. By refusing to kowtow, Harry and Meghan became targets for much of the English-language press.My grandfather’s victory over apartheid does not mean that the fight against colonialism and racism is finished. He would want us to learn from him, to use his example to stand against all of the inequities that persist within the laws and institutions of our fragile democracies.In my case, my grandfather’s struggle inspired me to launch a foundation—named after my own father, Thembekile Mandela, who died while my grandfather was in prison—that focuses on health, youth, and women’s development in rural villages across South Africa. And that work has in turn inspired countless others to search out the light when surrounded by terrifying darkness.I count Harry and Meghan among those others, but no one owns Madiba. He is part of the world’s heritage. To defeat today’s injustices, we need his legacy unsullied by vested interests.

Big Meat just can’t quit antibiotics

Cattle at the Texana Feeders feedlot in Floresville, Texas. | Daniel Acker/Bloomberg via Getty Images Meat production is making lifesaving drugs less effective. Where’s the FDA? The US Food and Drug Administration (FDA) knew that America’s meat industry had a drug problem. For decades, evidence had amassed that the widespread use of antibiotics to help chickens, pigs, and cattle grow faster — and survive the crowded conditions of factory farms — was causing bacteria to mutate and develop resistance to antibiotics. By 2009, US agriculture companies were buying up two-thirds of what are termed medically important antibiotics — those used in human medicine. This in turn has made those precious, lifesaving drugs less effective for people. Over time, once easily treatable human infections, like sepsis, urinary tract infections, and tuberculosis, became harder or sometimes impossible to treat. A foundational component of modern medicine was starting to crumble. But it wasn’t until the mid-2010s that the FDA finally took the basic steps of requiring farmers to get veterinary prescriptions for antibiotics and banning the use of antibiotics to make animals grow faster — steps that some European regulators had taken a decade or more prior. Thanks to those two actions alone, sales of medically important antibiotics for livestock plummeted 42 percent from 2015 to 2017. But according to Matthew Wellington of the Public Interest Research Group, the FDA’s reforms went after the low-hanging fruit, and they didn’t go nearly far enough. Now, in a concerning course reversal, antibiotic sales for use in livestock ticked back up 7 percent from 2017 to 2021, per a new FDA report. The chicken industry, which had led the pack in reducing antibiotic use on farms, bought 12 percent more antibiotics in 2021 than in 2020. It’s a sobering turn of events with life-and-death implications. In 2019, antibiotic-resistant bacteria directly killed over 1.2 million people, including 35,000 Americans, and more than 3 million others died from diseases where antibiotic resistance played a role — far more than the global toll of HIV/AIDS or malaria, leading the World Health Organization to call antibiotic resistance “one of the biggest threats to global health, food security, and development today.” Public health advocates want to see the FDA take the threat much more seriously, and often point to Europe as a role model. From 2011 to 2021, antibiotic sales for use in livestock fell by almost half across the European Union, and use per animal is now around half that of the US. Last year, the EU implemented perhaps its most significant reform yet: banning the routine use of antibiotics to prevent disease, reserving their use for only when animals are actually sick. That critical step is expected to slash the continent’s antibiotic use further. John MacDougall/AFP via Getty Images Activists with the environmental organization Greenpeace campaign against the excessive use of antibiotics in livestock farming in front of an outlet of discount food retailer Lidl, in Berlin on July 25, 2017. It’s unlikely the FDA will follow in Europe’s footsteps any time soon. Asked about an EU-style ban on preventive use of antibiotics, an FDA spokesperson responded, “The laws in the US and our livestock population are not the same as that of the EU or other countries. The FDA’s initiatives to promote judicious use and reduce AMR [antimicrobial resistance] were devised specifically for the US and the conditions we face with the aim of maximizing effectiveness and cooperation of drug sponsors, veterinarians, and animal producers.” The FDA and the US food industry have proven that they can make progress on the issue — but to keep antibiotics working, they need to do a lot more. That will require them to tackle beef and pork, two of the more stubborn and complex sectors of America’s meat system that just can’t seem to quit antibiotics, since doing so could demand substantive changes to how animals are farmed for food. The American antibiotic-free revolution that wasn’t It wasn’t just the FDA’s new rules that caused antibiotic sales for livestock to plunge in a two-year period — Big Chicken played a part too. In the early 2000s, the nation’s fourth-largest chicken producer Perdue Farms began efforts to wean its birds off antibiotics, which it achieved in 2016 by changing chickens’ diets and replacing antibiotics with vaccines and probiotics. At first, chicken raised without antibiotics cost 50 percent more, but the company says it has since been able to all but close the cost differential. In the mid-2010s, while Perdue was making progress, activists leveraged the momentum and successfully convinced McDonald’s to source chicken raised without medically important antibiotics. Tyson Foods, the nation’s largest poultry producer, then committed to reducing antibiotic use, contributing to a “domino effect” in which producers and restaurants made further pledges to reduce antibiotics in poultry, said Wellington. By 2020, a little over half of America’s 9 billion chickens farmed for meat were raised without antibiotics, according to an industry survey. The sea change in chicken production demonstrated it was possible to quickly scale down antibiotics in farming, but it didn’t do much to reduce overall use, as the chicken industry only used 6 percent of antibiotics in agriculture in 2016. And the momentum didn’t spread to other parts of the meat business, like beef and pork, which together account for over 80 percent of medically important antibiotics fed to farmed animals. Some of the lack of progress in beef and pork comes down to the simple fact that pigs and cattle are raised differently than chickens. Chickens are slaughtered at just six or seven weeks old, so the chance they’ll get sick is lower than pigs, who are slaughtered at six months old, or cattle, slaughtered at around three years of age. The chicken industry is also vertically integrated, meaning a company like Tyson or Perdue controls virtually every link in the supply chain, so making big changes like cutting out antibiotics is easier than in the more decentralized supply chain of beef. For example, the typical steer will change hands several times before slaughter, going from a breeder to pasture grazing to a feedlot, all of which make it harder to coordinate an antibiotic-free regimen. In the last few months of their life cattle are also fed a high-grain diet that they aren’t adapted to digest, which increases the chance they’ll develop a liver abscess, a condition that’s prevented with — you guessed it — antibiotics. The pork sector, like poultry, is also vertically integrated, but the industry has largely opposed animal welfare, environmental, and antibiotic reforms. Antibiotics in pig production shot up 25 percent from 2017 to 2021. There’s also no pork or beef giant that’s taken the antibiotic-free leap like Perdue did for chicken. That could change in the years ahead: McDonald’s, the world’s largest beef purchaser, announced at the end of 2022 that it plans to reduce antibiotic use in its beef supply chain. However, the announcement didn’t come with a timeline, which worries advocates like Wellington, and the company has failed to make good on other pledges. Although voluntary change can move the needle, without regulation, industry has little incentive to make the dramatic reductions needed to safeguard antibiotics. While the FDA has prohibited meat producers from using antibiotics to speed up growth— their original purpose in agriculture — some of the antibiotics that promote growth, like tylosin, are still allowed for disease prevention, a loophole that disincentivizes producers from reducing antibiotics, Wellington said: “Our concern has always been that they’re just putting a different name on the same kind of use, which is a problem.” Daniel Acker/Bloomberg via Getty Images Cattle at a feedlot in Texas. In response to this concern, an FDA spokesperson said, “Veterinarians are on the front lines and as prescribers, they’re in the best position to ensure that both medically important and non-medically important antimicrobials are being used appropriately.” Aside from outright banning the routine use of medically important antibiotics to prevent disease, Wellington said he’d like to see the FDA take three actions: set a target of reducing antibiotic use by 50 percent by the end of 2025 (based on 2010 levels); publish data on antibiotic use, not just sales; and limit the duration of antibiotic courses for farmed animals. An FDA spokesperson said specific reduction targets weren’t possible because the agency doesn’t know how many antibiotics farmers are using: “We cannot effectively monitor antimicrobial use without first putting a system in place for determining [a] baseline and assessing trends over time.” The agency right now only collects sales data, and it’s been exploring a voluntary public-private approach to collect and report real-world use data. Some states haven’t waited on federal regulators: Maryland and California have both restricted the use of antibiotics on farms. How the Europeans — and some Americans — are quitting antibiotics on the farm Just because it’s difficult to reduce antibiotics in beef and pork production doesn’t mean it’s impossible, as the story of Iowa pig farmers Tim and Deleana Roseland demonstrates. In 2005, they switched from raising pigs in the conventional manner — tightly cramped and fed a steady diet of antibiotics — to raising pigs for Niman Ranch, a higher-welfare meat company now owned by Perdue. That required the Roselands to ditch the routine use of antibiotics. “I was nervous about it at first but as it turned out, it was no big deal whatsoever,” Tim Roseland said. But he added that it wouldn’t have been possible with his old setup: “There’s too much overcrowding, small pens, too many pigs crammed into a little area.” Their newer system gives each pig more space in larger pens, and bedding that they root through and chew on, instead of, when they’re packed into factory farms, chewing on each other. They also give the pigs more vaccines and feed them probiotics. And there’s a lot to learn from the Europeans: Denmark, the continent’s second-largest pork producer, has become the de facto case study in how to wean Big Meat off antibiotics. In the early 1990s, it started phasing out antibiotics in pigs with little impact on the industry. From 1992 to 2008, antibiotic use per pig fell by over 50 percent, and while pig mortality went up in the short term, by 2008 it had dropped back to near-1992 levels. Tom Stoddart/Getty Images Pigs pictured at a farm in Tilsbaek, Denmark, producing 18,000 piglets per year mainly for the domestic market. The small country’s transformation wasn’t a matter of rocket science, but a suite of smart management practices: more frequent barn cleaning, better ventilation, later piglet weaning, more space per pig, extra vaccines, and experimenting with feed and additives. All this comes with difficult tradeoffs: antibiotic-free pork costs more and requires more land, which increases its carbon footprint. But we can’t expect to have cheap meat forever without a cost to public health, an uncomfortable truth that’s led many environmental and public health groups to champion a message of “less but better” meat. “I think the fact that Denmark, despite very low antibiotic use since 1995, is still one of the biggest pork exporters in the world, already speaks for itself,” said Francesca Chiara, a director at the University of Minnesota’s Center for Infectious Disease Research and Policy. Given the projected rise of global antibiotic sales for agriculture, Denmark’s example may not be speaking loudly enough. But it’s time we listen — nothing less than the future of human medicine is at stake.