Tangle - The Supreme Court's new code of conduct.

Starting point is 00:00:00 Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight.

Starting point is 00:00:19 Interior Chinatown is streaming November 19th, only on Disney+. Chinatown is streaming November 19th, only on Disney+. From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle Podcast, the place we get views from across the political spectrum, some independent thinking, and a little bit of my take. I'm your host, Isaac Saul, and today is Wednesday, November 15th. We are going to be talking about the Supreme Court's Code of Conduct. Yes, that is right. The Supreme Court has released a new Code of Conduct.

Starting point is 00:01:06 We're going to talk about exactly what is in it and break down what the left and the right are saying about it. Before we jump in, though, a quick heads up. We have a new video up on our YouTube channel. A couple of weeks ago, you might remember I published a subscribers-only Friday edition titled Israel Has No Good Options. It was about what exactly Israel could do in the wake of the Hamas attack and a little bit about why I thought pretty much every option it had was a bad one. And there was a lot of interest in it. We kept it behind a paywall for a couple of weeks, but we are releasing it now as a YouTube video. I did a reading on YouTube of the piece and I think a lot of people are interested in it.

Starting point is 00:01:46 So yeah, we decided we'll publish it. We'll share some of that with the world. If you're interested, you can go check it out by looking up Tangle News on YouTube. All right, with that out of the way, we'll jump in with some quick hits. First up, the House of Representatives passed a two-part stopgap spending bill yesterday by a 336-95 vote, keeping the government open until early 2024 if it is passed by the Senate. 127 Republicans and 209 Democrats voted for the bill. Number two, Israel said its soldiers have entered Gaza's main hospital to carry out a targeted mission against Hamas. The director of Gaza's hospital said at least 650 patients remain inside. Number three, Representative Tim Burchett, the Republican from Tennessee, accused former House Speaker Kevin McCarthy of elbowing

Starting point is 00:02:43 him in the back. An NPR reporter said she witnessed the incident, but McCarthy denied it. Separately, Senator Mark Wayne Mullen, the Republican from Oklahoma, challenged Teamsters President Sean O'Brien to a fight during a hearing on labor unions. Senator Bernie Sanders, the Independent from Vermont, had to intervene. Number four, a former campaign fundraiser for Representative George Santos, the Republican from New York, pleaded guilty to wire fraud. The campaign fundraiser faces a maximum 20 years in prison. And number five, in Michigan, a judge ruled that former President Trump can remain on the presidential primary ballot and rejected a lawsuit arguing that he could be removed under the 14th Amendment.

Starting point is 00:03:40 For the first time ever, the Supreme Court is adopting a code of conduct for all justices. The court has faced growing ethics concerns this year, most notably reports that Justices Clarence Thomas and Samuel Alito failed to disclose trips and financial ties to conservative donors. We're covering breaking news. The Supreme Court has adopted a formal code of conduct for the first time in its history. The 15 page document describes the conduct that justices should abide by. A 15-page document describes the conduct that justices should abide by. It includes upholding the integrity of the judiciary and avoiding the appearance of impropriety. It comes amid heightened scrutiny of justices' ethics practices. The nine justices of the Supreme Court handed down a surprise unanimous decision today, binding themselves to a new code of ethics.

Starting point is 00:04:30 Here's how they explained it, writing, the absence of a code has led in recent years to the misunderstanding that the justices of this court, unlike other jurists in this country, regard themselves as unrestricted by any ethics rules. To dispel this misunderstanding, we are issuing this code. On Monday, the Supreme Court issued its first ever code of conduct after several reports over the past year of undisclosed gifts to justices and luxury trips from donors sparked a pressure campaign for the court to respond. The court's 15-page document includes a one-page statement, nine pages of conduct rules largely derived from existing federal codes of conduct, and five pages of commentary about the rules. In the statement, the document says, for the most part, these rules and principles are not new, but the absence of a code has led in

Starting point is 00:05:10 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. Among the rules are avoiding impropriety or the appearance thereof, performing duties of the office without partisan consideration, a commitment to recusal in cases where a reasonable person can question a justice's impartiality, and prohibitions on speaking or participating in events with groups that are partisan or have financial interests before the court. All nine justices signed the document, which court watchers interpreted to mean that it is not binding to future appointees unless they accept the code. The rules will also be self-enforced by the just to mean that it is not binding to future appointees unless they accept the code. The rules will also be self-enforced by the justices, and it is unclear what,

Starting point is 00:05:50 if any, action may be taken for violating the rules. Some of the rules were criticized for being vague, such as a guidance for justices to consider whether speaking before a group would create an appearance of impropriety in the minds of reasonable members of the public. Senator Sheldon Whitehouse, the Democrat from Rhode Island who has been critical of the court, said the code was a good start but didn't go far enough. 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. The honor system has not worked for members of the Roberts Court, he said. The code of conduct

Starting point is 00:06:23 says justices can seek counsel from fellow colleagues, lower court judges, in-house legal counsel, and scholars. There is no ethics office or advisor created along with the Code of Conduct. In the commentary section, the justices acknowledge that the lines created by the Code may not always be clear or agreed upon by the justices, just as there is often sharp disagreement concerning matters of great import that come before the Court. Since 2019, the court has been openly considering a code of conduct, but the project has gone through fits of starts and stops behind closed doors. Public pressure mounted after a series of stories about Justice Clarence Thomas receiving undisclosed travel gifts from wealthy conservative activists, as well as questionable conduct from Justices

Starting point is 00:07:04 Sonia Sotomayor and Samuel Alito. We covered the debate around the ethics controversies and codes of conducts in previous editions. You can find links to those in the episode description. Today, we're going to break down some reactions to this new code of conduct from the right and the left, and then my take. we'll be right back after this quick commercial break first up we'll start with what the right is saying the right has no problem with the code but is critical of how it came to be some suggest that by giving in to detractors who demanded the code, the court is showing that these attacks are effective. Others concede that enforcement of the code will be challenging, but say there are few remedies that will satisfy

Starting point is 00:07:53 the court's critics. In National Review, Dan McLaughlin said the court rebukes its critics with the ethics code. In politics, one of the hardest decisions is whether to do something you think is right when it's being demanded by the wrong people for the wrong reasons as part of a campaign to accomplish the wrong ends. That's where the Supreme Court has found itself in the debate over publishing a code of ethics for the justices. Today, the court did so. It will get no credit for this from its critics, but the code is a positive step and one that deprives them of a bad faith talking point, McLaughlin said. The well-financed campaign to paint the conservative justices and only them as unethical is only one prong of a wider effort to intimidate and or discredit the court and its justices by

Starting point is 00:08:33 physical protests, threats of violence, smears, and proposals to restructure the court. Nonetheless, it has had an effect because members of the public who don't follow the court closely just keep hearing that the justices are not only acting unethically, but are also not subject to any rules. That was always nonsense. In The Federalist, David Harsanyi argued that by caving to Chuck Schumer, SCOTUS only incentivizes more attacks. The entire ginned-up controversy over ethics is a cynical ploy to destroy the legitimacy of the court. And everyone, other than perhaps the most gullible partisan sap, understands what's happening, Harsanyi said. The court has framed the code as a way to correct the public's misunderstanding regarding the justices'

Starting point is 00:09:13 ethical obligations. It won't, because there's no misunderstanding. The effort to destroy the Supreme Court's legitimacy is a highly coordinated partisan scheme. Schumer has no more constitutional power to dictate the court's ethics policies than the court does dictating Senate rules. It doesn't matter what Schumer thinks is a good start or not. This is why justices are often given lifetime appointments and independence. Robert should have told the New York senator to pound sand. Instead, the chief justice was bullied, reflecting his long, unfortunate deference to politicians. In Reason, Ilya Soman wrote that there are legitimate concerns about enforcement of the code. Most of the rules strike me as intuitive and eminently defensible. Among the highlights

Starting point is 00:09:54 are guidelines for recusal, the first in the court's over 200-year history. While justices have at times recused themselves for various reasons, until now the court had not systematically outlined the rules that apply in such cases. Critics of the new code have focused on the lack of enforcement mechanisms, Soman said. It is, however, partly mitigated by the fact that the justices care about their reputations, and a justice who violates these rules is likely to take reputational damage. He or she can no longer claim that the relevant standards are unclear. It is also the case that it's hard to create a binding enforcement mechanism for the court without intruding on judicial independence.

Starting point is 00:10:30 These considerations may block enforcement mechanisms as rigorous as critics might want. All right, that is it for what the right is saying, which brings us to what the left is saying. The left thinks the code is pointless because it lacks an enforcement mechanism. Some call it the first step toward accountability for the court, but worry the justices will still be reluctant to change their behavior. Others say the code does nothing to address the corruption of conservative justices. In Vox, Ian Millhiser called the code a joke and literally worse than nothing. The code largely seeks to put in writing the same rules that these justices followed when they accepted luxury gifts from major Republican donors and is

Starting point is 00:11:16 also almost entirely unenforceable, Millhiser wrote. If a litigant or one of the more than 300 million Americans governed by the Supreme Court, believes that one of the justices is violating the newly written down rules, there is no mechanism to enforce those rules against the justice. The new code imposes no meaningful obligations on the justices. It explicitly disclaims any desire to do so. It accuses the court's critics of misunderstanding the justices' past behavior when it really isn't hard to understand the ethical implications of taking a $500,000 gift from a major political donor, Millhiser said. This Supreme Court has long held people who believe that public officials should not be influenced by big donors in utter contempt. It's not surprising that the court's new ethics rules

Starting point is 00:11:58 display the same contempt for critics of the justices' own corruption. In MSNBC, Jessica Levinson said the code is an overdue half-step toward accountability. The announcement of the code shows that public pressure matters, but the fact that the code has no enforcement mechanism demonstrates that, at least for now, public pressure pushed the justices only so far, Levinson wrote. The tone the court adopts right off the bat is that really this is all our fault. It's our fault, the statement suggests, for being so confused as to think that because they're the only nine federal judges in the country not subject to a binding code of conduct, some act as if they're not subject

Starting point is 00:12:33 to a binding code of conduct. What we have here is a unanimous decision by the Supreme Court that is, more than anything else, a tacit acknowledgement that the court's approval rating is near its all-time low. It's impossible to disentangle the lack of faith that the court's approval rating is near its all-time low. It's impossible to disentangle the lack of faith in the court from the ethics scandals plaguing the court, and so it's easy to see why the court thinks the Code of Ethics is just what the doctor ordered. But without an enforcer mechanism, what we have today is almost identical to what we had yesterday, an assurance by the court that justices will act according to certain ethical standards. court that justices will act according to certain ethical standards. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu,

Starting point is 00:13:14 a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. In The Nation, Ellie Mistal argued that the code won't stop the corruption of the court. There's no clearer indication that these rules are useless than the fact that they end up codifying Thomas' outrageous behavior as ethically within bounds. According to the rules, not a single thing Thomas has done is a problem, Mistal said. Thomas isn't even the biggest elephant in the room that this code ignores.

Starting point is 00:13:57 One of the consistent ethical failures of the current Supreme Court is not the fishing trips or free vacations that justices regularly get from wealthy donors, but the fact that conservative justices are basically on call with the Federalist Society. Just last week, some of the justices appeared at the Federalist Society's annual gala, and Justice Amy Coney Barrett was a featured speaker. But according to this alleged code of conduct, that is all okay, Mistal wrote. The court-redefined fundraising event is only those events where people are literally passing the hat around, as if someone would ask the justices to make a solicitation speech at a telethon. The court's definition of a fundraiser seems designed to attempt the annual Federalist Society gala, which the organization claims is not a fundraiser but merely a dinner. Alright, that is it for the left and the right are saying, which brings us to my take.

Starting point is 00:14:50 So sometimes when I write my take, it feels like I'm hunting for a middle ground, but other times the moderate position feels just natural to me. On those days, the convincing elements of multiple perspectives are evident and black and white interpretation falls flat. Today is one of those days. If I had to summarize this code of conduct, which I've been calling for, to a five-year-old, I'd say some good, some okay, some bad. The good, first of all, kudos to the court for responding to public sentiment. However absurd it may seem, there really is no legal obligation for them to bind themselves to a code of conduct. Yet trust in the court has cratered, and there was clearly widespread concern about the state of the court. Not to sound too high-minded, but it's genuinely true that without public confidence, the court's power is undermined in a way that pulls at the

Starting point is 00:15:39 fabric of our democracy. The court is clearly trying to address that issue here. It's also good that none of the rules are explicitly bad. There are omissions, which we'll talk about, but as Ilya Soman put it, the rules are intuitive and eminently defensible. There weren't obviously problematic guidelines, and there were some which desperately needed to be put in writing, like prohibiting speaking at explicitly political events and overseeing cases where a family member or friend had business before the court. I was particularly happy to see recusal guidelines formalized by the court. Recusal is especially thorny because replacing a justice or leaving a seat empty both cause a cascade of issues. But even more fundamentally, the court hadn't clearly put

Starting point is 00:16:20 in writing when a justice is supposed to recuse themselves from a case. This document does that, and it has all nine justices' signatures attached. That's a big deal, and it's a good change. All right, so that is it for the good. How about the okay? First of all, it is understandable why so many people are up in arms about the lack of an enforcement mechanism, but the truth is that it is nearly impossible to create one that doesn't also interfere with the court's judicial independence. This is something Soman mentioned above, and law professor Russell Wheeler has also written about convincingly. Congress's oversight of the court is complicated, and any mechanism that was put into the code of conduct enforceable by another government branch could have ended up facing legal or constitutional challenges that would

Starting point is 00:17:04 end up before the court, hence the complications of this issue. But I never thought the legal enforcement was key to this issue. Fundamentally, the court's justices care about their reputations. Formal rules will make any violation damaging to those reputations. Further, the court left the door wide open to trying to address the issue in the near future. The court will assess whether it needs additional resources in its clerk's office or the office of legal counsel to perform initial and ongoing review of recusal and other ethics issues, the commentary section said. To assist the justices in complying with these canons, the chief justice has directed court officers to undertake an examination of best practices, drawing in part on the experience of other

Starting point is 00:17:44 federal and state courts. So, a brilliant, sensible, not-too-intrusive enforcement mechanism would have been great, but a bad enforcement mechanism that left the door open to influencing or overbearing interference in the court would have been terrible. They did neither, and they made it clear they'll look for a palatable solution down the road, which is okay. That brings us to the bad. Perhaps my biggest concern with the document was the tone of it and the way that tone bled into some of the actual rules. The court accuses the public of misunderstanding the justice's past behavior, which is a pretty bold and even offensive claim. The public isn't confused about a justice taking

Starting point is 00:18:21 hundreds of thousands of dollars in travel and gifts from a wealthy political donor. They are concerned about it, and rightfully so. I'm concerned about it, too. Worse, there isn't anything in the document that explicitly addresses those concerns. There are no new prohibitions on the kinds of gifts and vacations that set off much of the controversy of the last year or two, so it's easy to imagine all the work that went into this document doesn't meaningfully alter the perception of the court. And despite the recusal guidelines appearing in my quote-unquote good section, there is effectively a semi-truck-sized loophole that allows justices to ignore the rules if they feel they have a critical case-deciding vote. Part of the commentary argues that when hearing a case on the merits, the loss of one justice is effectively the same as casting a vote

Starting point is 00:19:04 against the petitioner. The petitioner needs five votes to overturn the judgment below, and it makes no difference whether the needed fifth vote is missing because it has been cast for the other side or because it has not been cast at all. That sounds a lot like leaving the door open for a judge to hang around even when they shouldn't. This is among my biggest concerns. Ultimately, the code of conduct is helpful but not perfect, and just as encouraging as its existence is, there is also a great deal of room to continue to iterate and improve it. Some good, some okay, and some bad. We'll be right back after this quick break.

Starting point is 00:19:42 We'll be right back after this quick break. All right, that is it for my take today, which brings us to your questions answered. This one's from Mary in Des Moines, Iowa. Mary said, as a registered Republican, I'm struggling to understand the new Republican philosophies. It used to be you were GOP because of fiscal responsibility, support of big business, separation of church and state, and reduced regulations. Now it seems it's okay to rally against big business, i.e. DeSantis vs. Disney, GOP vs. Anheuser-Busch, etc., run up the national debt willy-nilly, increase regulation against schools and diversity and equity, plus putting religion back into educational systems. So how does it break

Starting point is 00:20:25 out why people currently vote Republican? Taxes? Religion? Social benefits? I seem to think many just want reduced taxes and choose to ignore the rest of the new GOP beliefs. Or are there a large percent of the new Republican Party who just like to stir the pot? All right, so this is a great question. The parties are always shifting to try to gain themselves a few more votes with independents and moderates. So it's not very surprising that you feel like the Republican Party has changed from or felt different from the one you grew up in. As Hiram Lewis explained to me in one of our most popular interviews ever, the left and the right are largely a myth. There is no real defining North Star for Democrats or Republicans that is unchanging through their

Starting point is 00:21:04 history. Political parties and coalitions and tribes are always changing. But I don't think the GOP's fundamentals have changed all that much from the ones you described in the last few years. Instead, what you're seeing is a shift in specifics and messaging. You can see that in real time, right now, on something like abortion. Republicans have for decades been lobbying for stricter laws on abortion access, and now that Roe has been repealed and the electorate has rallied in favor of increased abortion access, the party is looking for the right message to appeal to voters. That doesn't mean Republicans are now all of a sudden in favor of abortion. For evidence of that, just look at last week's debate. That's also true with the example you gave of fiscal responsibility. Republicans still care a great deal about a balanced budget and a lower national debt,

Starting point is 00:21:49 partially because interest payments on our debt are eating into our federal budget. However, politically, it's hard to find the winning strategy to support that goal. Some candidates like Ramaswamy and Trump have called for reducing the military budget and decreasing taxes to spur growth, though Trump has also been inconsistent. Others like Rick Scott and Lindsey Graham want to reform entitlements and lower taxes to spur growth. Then others like Ron DeSantis and Matt Gaetz want to cut federal departments and lower taxes to spur growth. If you put them all together, it's easy to see what they agree on. So while I think Republicans are becoming more individuated on issues like military intervention

Starting point is 00:22:24 abroad and certain social conservative issues like gender issues, I also think they're still largely aligned on the old Republican philosophies you mentioned. They're just evolving in how they want to act on them. All right, that is it for Your Questions Answered, which brings us to our Under the Radar story. YouTube has announced a slew of policy changes that it hopes will inform voters about content that has been generated by artificial intelligence. YouTube announced the changes in a blog post on Tuesday, including that creators who use AI tools to make altered or synthetic videos without disclosures will have their content removed or suspended from the platform's revenue-sharing program. Generative AI has the potential to unlock creativity on YouTube and transform the experience for viewers and creators on our platform, Jennifer Flannery O'Connor and Emily Moxley, YouTube's vice presidents for product management said. But just as important,

Starting point is 00:23:20 these opportunities must be balanced with our responsibility to protect the YouTube community. The Associated Press has the story, and there's a link to it in today's episode description. Next up is our numbers section. The percentage of Americans who said they had a great deal of confidence in the Supreme Court in 2021 is 26%. The percentage of Americans who said that they had a great deal of confidence in the Supreme Court in 2022 is 18%. That's an all-time low since the General Social Survey began recording this data in 1973. The percentage of Americans who said they had hardly any confidence in the Supreme Court in 2022 was 36%. The percentage of Americans who said they had a favorable view of Justice Clarence Thomas when he joined the court in 1992 was 44%.

Starting point is 00:24:06 And the percentage who said that in 2023 was 39%. The percentage of Republicans who said they had a favorable view of Thomas in 2005 was 57%. The percentage of Republicans who said they had a favorable view of Thomas in 2023 was 67%. The percentage of Republicans who say the Supreme Court has too much power, according to a 2023 poll, is just 20%, while 60% of Democrats say the Supreme Court has too much power. All right, that is it for our numbers section, which brings us, last but not least, our Have a Nice Day story. This is a special one. Today's story is a first for this section, one. Today's story is a first for this section, a Tangle exclusive report, a Tangle exclusive have a nice day. Two residents of Bend, Oregon were headed home after a date night in September

Starting point is 00:24:53 when they saw something strange on the side of the road. Two men in mountain biking clothing trying to corral a great horned owl with their jackets. The bicyclists were just trying to keep it off the road but didn't know what to do next. The owl had flown into the side of their truck at dusk, the bicyclists said, and it clung onto their canopy until they reached town. Fortunately for them and for the owl, the two people who came to help were Tangle's own social media and marketing manager, Magdalena Bikova, and her husband, Chad. Since it was late on a Friday and no veterinarians were available to tend to the bird, Magdalena and Chad brought it back to their home to rest and recover in their greenhouse for the night.

Starting point is 00:25:29 Specialists at the animal rescue Think Wild came to collect the owl the next day and slowly but surely were able to help it recover to full health. Then, a few weeks later, they invited Magdalena to come help them re-release it into the wild. In front of the volunteers at Think Wild, the two bicyclists and Chad Magdalena lifted the lid off the owl's crate, briefly locking eyes with it before it flew off into the forest. In all the chaos of this world, it was such a serene, powerful moment to lock eyes with that owl right before it flew off during its release, she said. Magdalena herself has the story, along with some pictures and videos, on the official Tangle Facebook account, and there is a link to that in our episode description. All right, everybody, that is it for today's

Starting point is 00:26:15 podcast. As always, if you want to support our work, please go to readtangle.com and think about becoming a member. We'll be right back here at same time tomorrow. Have a good one. Peace. Our podcast is written by me, Isaac Saul, and edited and engineered by John Law. The script is edited by our managing editor, Ari Weitzman, Will Kabak, Bailey Saul, and Sean Brady. The logo for our podcast was designed by Magdalena Bokova, who is also our social media manager. Music for the podcast was produced by Diet75. And if you're looking for more from Tangle, please go to readtangle.com and check out our website. The faster money and data move, the further your business can go

Starting point is 00:27:18 to a seamless digital future for Canadians. Let's go faster forward together. In life, interact. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight.

Starting point is 00:27:47 Interior Chinatown is streaming November 19th only on Disney+.

Tangle - The Supreme Court's new code of conduct.

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