A Conversation about Supreme Court Ethics and Journalistic Integrity

Jack Capizzi: Well, hello and welcome to today's FedSoc forum. Today, June 5th, 2024, we are hosting a conversation about Supreme Court ethics and journalistic integrity. My name is Jack Capizzi and I'm an Associate Director of Practice Groups at the Federalist Society. As always, please do note that all expressions of opinion are those of the experts on today's call. Today we are delighted to be joined by Allyson Newton Ho, Partner and Co-chair of the Constitutional and Appellate Law Practice Group at Gibson Dunn & Crutcher, LLP, as well as Dan McLaughlin, who's a Senior Writer for National Review Online. As always, full bios of each are available on our website. After our speakers have given their remarks, we will turn to you, the audience, for any questions that you might have. If you have a question at any time, please type it into the Q&A function at the bottom of your screen and we'll handle those as we can towards the end of the call. With that, thank you all very much for being with us today. Dan, I'll turn it over to you.

Dan Mclaughlin: All right, so I think we are having a discussion about judicial recusal and judicial ethics and the journalism around that because it's Supreme Court silly season, and this has become an annual ritual to have attacks on the justices, the conservative justices, the Republican-appointed justices on the court. There's a coordinated activist plan to do that in which clearly a number of major media outlets have become willing participants. And so all of the things that we think about judicial ethics - they matter, right? The rules matter, the principles matter, the facts matter. But I think we also have to evaluate the current attacks in the realistic context in which they're occurring. And so that over the past couple of weeks has been an attack on Justice Alito over a couple of flags flown at his beach house by his wife. All the facts that we have reported, all the evidence that we have seen suggests only one thing, which is that these flags were flown by his wife, and we'll get into those flags in a minute.

But the court has rules. Justice Alito, I think in declining to recuse himself from January 6th-related cases has two useful things on his side. One is the law and the other is the facts, and those are nice friends to have. As far as the law is concerned, we can put a pin, I think, in the separation of powers question because Congress has extensive powers to dictate how the lower courts do their job for the same reason that it has powers dictate how the executive departments do, right? They're creations of Congress. It has more limited powers to tell the Supreme Court justices how to do their job for the same reason it has more limited power, so the president, which is that they're created by the Constitution. But that being said, there is a federal recusal, statute 28, USC 4 55. It's been on the books for quite a while.

It covers the justices and the justices, in their own self-imposed code of conduct that they formally organized and released last year, essentially incorporating those standards. One of the most important parts of the standard is that it talks about when a judge's impartiality might reasonably be questioned and reasonably comes throughout the statute and throughout really all of the precedents in this area. If the standard for recusal was that a judge must recuse whenever their impartiality is called into question by anyone, then recusal would be automatic. Anytime any litigant wants a judge off the case, they could just say, "I don't think you're impartial" and there you go. That's not how it works. It's not how it has ever worked. And actually I think one of the useful precedents to look at in this is a 2002 Supreme Court case called Sao Paulo v. American Tobacco, in which the judge, it was argued that the judge should recuse himself because earlier I think either in the case or in a related case, his name had appeared on an amicus brief and therefore he had taken a position against one of the parties.

And what had happened was essentially that an organization he had been involved with previously filed an amicus brief. It listed him as one of the officers. He was no longer an officer. It was therefore true on the one hand that his name had been on an amicus brief filed in a case and that raised a public perception, but it was also true that he had not actually done anything to involve himself with that brief. And the court said, "You know what? The truth is, what matters. What matters is what a reasonably informed observer knowing the truth would conclude." And in that case, they would conclude that the judge had not in fact done anything to call his own impartiality into question. And I think if you look at how the court has resolved these recusal questions at the individual justice level or in ruling on lower court's partiality, that's how they've been all along. And the other key element of the law, of course, is that Supreme Court justices have a particularly high duty to sit in cases if refusal is not required. They are not replaceable in the way that a district court judges or that a member of a federal court of appeals panel is at the selection phase when there are other people on the same bench who could be selected to sit. So with that, I don't know, Allyson, if you want to get a little bit into the facts of the case.

Allyson Newton Ho: Sure. And thank you, Dan, and to the organizers, it's as always a privilege to be part of Federalist Society discussion and as always the views that I'll express are my own. I want to start by underscoring something that Dan said that I think is really an important point, and that is ethics matter, rules matter. And if we want to have a good faith discussion about what the rules should be about what the ethics requirements should be, let's have that discussion. But that's not what we're seeing. What we're seeing is the weaponization of ethics to go after individual jurists and it's hard to escape the conclusion that the reason that these jurists are being targeted is not so much a disagreement about ethics as a disagreement about the views that they hold. And so I see this as part of the weaponization of ethics and really the tabloidization of some of the reporting on the court.

And I want to underscore what we are talking about and what we're not talking about. I have the utmost respect for members of the Supreme Court Bar who report on the court and who have done so for years. I find it interesting that a lot of the current controversies aren't, those articles aren't under the byline of those reporters, but under others. I also think it's important to underscore that we're not talking about criticism of opinions and decisions. As Dan said, we're entering what he called a 'silly season' at the Supreme Court. We will expect between now and the end of this month decisions in roughly 30 cases. I'm sure everyone on this zoom, some of those decisions you'll agree with and some that you'll disagree with. Criticism of the output of the court is a feature, not a bug of the process. But that is not what we're seeing and that is not what Dan and I are talking about today.

We are not talking about disagreeing or a respectful disagreement. We really are talking about the politics of destruction. It's not enough just to disagree with someone. You have to go after that person to try to destroy them, to discredit them, to de-legitimize the institution. So I think it's very important to separate out criticism of the opinions and decisions of the court from what we are seeing, which is really weaponizing ethics and the tabloidization of reporting on the court to go after individual jurists because of what is really a dislike of their viewpoints and less a disagreement with their opinions. Or at the very least, it is a refusal to engage on the merits of the opinions of the output. And instead to try to preempt that by simply declaring the output itself, the product of a de-legitimized court.

Dan Mclaughlin: And it really is. I mean, it's amazing, first of all to see the "flood the zone" coverage of New York Times. There's four reporters on this, and a whole parcel of Op-Eds running with various pieces of this story. And let's face it, it's kind of hilarious to watch the media critics of the court and the political critics of the court, the President, the Senate majority leader, what they're doing right now, because they are literally out of one side of their mouth saying, "The court is illegitimate, the court is unethical, the court is all rigged and everything." And then they're immediately pivoting in the same sentence to, "Donald Trump is terrible threat because he keeps criticizing the lower court judge. And how dare anybody, the judicial process is sacrosanct, nobody's above the law. The critics of the judge should be gagged." And if we're being fair here, Trump, and certainly some of his louder followers have been doing the exact opposite on both of these issues. But I mean, it's just hilarious. I mean, I think Schumer the other day was talking about, he goes on this sort of lengthy rant about how terrible it's that Trump is calling the court decision against him into question, then he immediately goes into, "And then the corrupt MAGA Supreme Court issued this opinion on abortion." So I think we're entitled to look at both the media and the political fear and see an awful lot of opportunism here. That is not necessarily the application of a principled standard.

Allyson Newton Ho: Dan, I think you have hit on something that's really important. This is about the application of a principled standard. If we want to have a discussion about ethics rules, let's have that discussion. If we want to have a discussion about recusal rules, which as you rightly point out will include a serious discussion of separation of powers concerns, which also goes along with that, let's have those discussions. But again, that's not what the American people are seeing right now. I think it's a pretty transparent attempt. Ethics for thee, and not for me is no, that's not a principal standard. And I think that is what to me is so destructive about what we're seeing. I mean, the founders certainly anticipated criticism of judges, right? That's why there's life tenure. That's why there's salary protection. So we're not sort of talking about whether you can't criticize an opinion or a decision that a judge makes.

I mean, I'll just highlight one decision that I found really interesting lately that a lot of us who are very interested in the rise of the administrative state or following was a challenge to the Consumer Financial Protection Bureau, the CFPB and its funding mechanism and whether that funding mechanism was consistent with the constitution. In a seven member majority opinion written by Justice Thomas, the court held that there was no constitutional infirmity, at least on the basis that the challengers had mounted in that challenge. And Justice Alito joined by Justice Gorsuch dissented, right? You had this two member dissent on an important issue. So you had really the court's most fervent originalists, disagreeing very vociferously on an important question of administrative law. And I don't think you can question any of those jurist's commitment to the constitution, to originalism, especially when it comes to the administrative state. And yet here you had those jurists disagreeing in good faith with each other.

What we're seeing in the media, and regrettably sometimes on the hill is an entirely different thing. It's not a disagreement. It is an attempt to de-legitimize. And so I'm with you, Dan, I'm not surprised, but I'm disappointed to see the timing, some of these attacks coming on the verge of the release of a lot of important decisions. I don't think that's an accident. And again, it's an attempt to refuse to engage on the merits on these arguments and to really have a debate on it. I guess if you can't persuade someone of your view, then you punish them, right? You try to punish them into silence, you try to intimidate them. And regrettably, I think that's what we're seeing here.

Dan Mclaughlin: And it's useful, I think it's useful to have a little historical perspective with this stuff. The recusal rules didn't really exist in common law, right? I mean, we all know the maxim about how a judge isn't supposed to be the judge in his own case. There was hardly anything more than that to the concept of recusal in common law. Blackstone talks about that, I think, or at least he's been cited for that. So Congress actually started working its way into this as far back as the 1790s. I think the 1821 version of the current statute didn't cover the justices. Certainly if you look at the 19th century, there were justices who sat on cases that would just shock the conscience today that they were there, whether it be Marshall and in Marbury v. Madison or Salmon P. Chase in Texas v. White upholding the decisions of then-Secretary of the Treasury Salmon P. Chase during the Civil War.

So it was a gradual process. It's interesting as a footnote here, I mean, Alito replaced Sandra Day O'Connor on the court, and she was the last former elected official to sit on the court at the time up to the point she retired, there had always been at least one member of the court who had been an elected member or elected politician. Chief Justices were often - we had a former president, a former presidential candidate, former vice presidential candidate. So the founders, and they wanted the justices to remove themselves from the act of hurly-burly of politics, but they didn't have any sort of illusion that they were putting people on the court who were kind of monastically separated from the world of politics and opinions. I mean, George Washington called up John Jay to have him go abroad and negotiate a treaty while he was the Chief Justice. Robert Jackson did something similar at the Nuremberg trial.

So it was a long way to a more rigorous sense - and certainly, I mean, the justices we've seen in the past, justices who did things that were much more overtly political, justice Ginsburg, justice Thurgood Marshall, criticizing Trump and Reagan respectively, Justice Abe Fortas, one of the reasons he stepped down from the court was that he was heavily engaged in advising Lyndon Johnson behind the scenes, giving him political advice, leaking the court's deliberations, things like that. So I think we actually have the least in many ways, the least politically engaged and compromised, if you will, court that we've ever had or certainly that we've had since before the New Deal. But the court is not hermetically sealed away from the world. And so the idea that a judge may have a spouse or friends who are involved in politics is not something that should shock the conscience. It's the way things have normally been.

And I think that one of the problems with the critics is that they don't have any perspective historically. They refuse to look back at anything that has been done in the past. And the court has spent a lot of time developing precedents in this area. I mean, there was a number of justices who put out a memo in the early nineties that's now been formally incorporated into the code of conduct about how do you deal with the question when you have a family member who is practicing law, where do you draw the line between, "Oh, this person is too remote from this particular case to worry about it." and where somebody is so heavily engaged or has enough money riding on a case that you really need to recuse yourself. And so there have been serious efforts, and the situation with Justice Alito is so far removed from anything that anybody has ever considered a recusing matter in the past.

I mean, the two flags at issue, even here, the upside down flag and the Appeal to Heaven flag, pine tree flag, I don't think anybody has really made a firm case that these are actually symbols that are universally recognized as "stop the steal" symbols. They certainly have been flown by people in those causes. But if you look at the crowd photos on January 6th, what's the flag that you see the most? You see a lot of Trump flags. You see some of the Gadsden flag, you see a few Appeal to Heaven flags, you see some upside down flags, but you see some confederate flags, you see some state flags and religious flags. But by and large, the flag you see the most is Old Glory. And I don't think anybody's saying the court should take that down. So just because a flag has been used by people in a particular political movement doesn't mean that it is commonly identified with that movement. The Pine Tree flag with the Appeal to Heaven slogan flew - until after this story broke - it had flown since the sixties in front of the city hall in San Francisco without the "Appeal to Heaven." But if this was universally recognized as a "stop to seal symbol", the Pine Tree flag with or without the slogan would be toxic. And yet just last year, in 2023, both democratic-controlled houses, the Maine legislature voted in favor of restoring it as the Maine state flag.

Allyson Newton Ho: Yeah, I think that's an important point you're making, Dan, about history and about perspective on the court. And I remember, I think maybe it was a couple of years after I clerked at the court, there were a couple of ill-fated TV series about clerking on the court, and we all sort of agreed that if those were honest about the life of a law clerk, it'd be so boring that nobody would watch. So the only way to garner an audience for those shows would be to have it just bear no resemblance to the actual reality of what it was actually like to get eyeballs in and to get viewers. And I just feel like we're seeing a similar thing unfold with the tabloidization of court coverage and the weaponization of ethics. But I think it is important to call this out. I don't think for a minute that any justice on the Supreme Court is going to be swayed one way or another, not one iota when it comes to this sort of the coverage and these type of accusations, I do worry about the message it sends about how our republic is supposed to function under the blueprint that the founders left us in.

There's one thing we know is that - I think Ronald Reagan said this best years ago - that our republic, our freedoms, we don't enjoy them by osmosis. They are our republic. The freedoms that we enjoy under it are virtues and values that have to be perpetuated. And so I do worry that if there is no response or no counter argument to sort of the relentless attacks that we're seeing, I'm concerned about the message that it sends about our republic and about the values that we were founded on. And if you think in terms of history, I mean, my goodness, the founders debated and disagreed vigorously among themselves about a whole host of foundational, foundational issues. Fierce disagreement is one thing. Disrespect, delegitimizing, not trying to persuade, but to punish - that is something entirely different. It's fundamentally inconsistent with what the founders set in place and what they guaranteed in our founding documents. So that is my concern, is that especially to generations that are watching this unfold and the extent to which they are learning, it's important I think for us to be voices, to put history and a little bit of reality back into the debate and into the discussion.

Dan Mclaughlin: And I do think that, I mean, look, one of the reasons that the Federalist Society exists and that we have events like this is because I think we have a certain obligation to think through. And that's why we often have both panels and debates - to think through what the principles are that should apply to everybody. You see literally all of this happening at the same time that we have a state court judge in the Trump trial who literally donated money earmarked for a Stop Trump fund. And that's not considered to be - it was 35 bucks - but that's worth more than flying a flag, I guess. But at the same time, I think people understand that state trial courts are often more closer to the ground of politics, but at the same time, a trial judge actually has a lot more power, a lot more power than an individual Supreme Court justice to bend how a case goes.

Supreme Court Justices can do very little actually on their own without persuading any of their colleagues. I mean, the other separation of powers issue that we've had here is on the question of enforcement because there have been efforts by the Senate to call either Roberts and/or Alito on the carpet for the court. And both of them have basically given the Senate the stiff arm, and the court has a long tradition of that. Again, I mean going all the way back to when George Washington asked for what amounted to an advisory opinion, and the court took his request very seriously because it was submitted in good faith. He had some questions about, I think it was about a treaty at the time, and they ultimately wrote back to him and said, 'Sorry, we're not supposed to do this." And Washington accepted that, one of his great virtues as President was that he didn't always get the constitutional questions right, but he was willing to accept corrections on them.

But I mean, if you look at the need for a consistent set of rules in this area, I think some of that sense of humility is useful. But the enforcement issues now, I mean Jamie Raskin of the House is a house member of Maryland wrote this whole piece trying to argue that the Justice Department should write in and demand that the court file something in the court and try to get Alito off these cases, which I have to wonder about the commitment to judicial independence and ethics there if you're trying to have the Justice Department implicitly threaten the court in a sense, and all of this in cases, I mean the two cases, it's worth remembering two cases before the court right now that they're trying to get Alito off. One involves the Fischer case - a constructionist federal statute that's from the Sarbanes-Oxley Act of 2002 that was originally designed as a document destruction and sort of witness tampering kind of statute and has been applied to the Capitol riot protestors and rioters. And I think there's a very legitimate statutory construction question at issue there that both sides have a decent amount of merit to their arguments. But the idea that somehow Alito has some interest in this case because his wife flew a flag is preposterous. And the other question is about presidential immunity. And again, this is kind of a question for the ages, and these are questions that go well beyond Donald Trump and they're what we have a Supreme Court for.

Allyson Newton Ho: No, and I think you are very right, Dan. It's important to emphasize the separation of powers concern here. And I think sometimes it's easy to think of separation of powers as this sort of very academic or abstract notion, but it is the architecture of our liberty here. And to me, one of the things that makes the founders, the Constitution, the republic that they founded so exceptional, is this recognition that there are lots of constitutions around the world that have very eloquent guarantees of rights written in them, the Chinese Constitution and others speak very eloquently of the rule of law and all these things. But as Justice Scalia talked about they're "parchment promises", and so the genius of the founders was to recognize that you had to build an architecture that if liberty, if government, "of the people, by the people, and for the people" was going to survive, it needed an architecture and separation of powers is that architecture. And one of the reasons that I'm so interested in this case from this term about the CFPB was where you saw two really rock-ribbed originalists, two jurists totally committed to originalism and the separation of powers who disagreed about how those rules, how those principles applied in a particular case.

And I think that is sort of in a nutshell, the problem that we're seeing in all of this tabloidization reporting and weaponization of ethics. It's not a discussion about the rules and what the rules should be. It is ethics for thee, and not for me, right? It's recusal for thee, but not for me. I think that is what we're seeing, and it's important I think to discuss it, to call it out and not to let the attempt to avoid that discussion to win. I think that's why it's all the more important for organizations like the Federalist Society to redouble their efforts, as you say, Dan, to be devoted to the principle of debate and presenting - sometimes the different sides of the issue will be a blue, red or conservative-progressive division. Sometimes the debate is originalists versus originalists. But we have to cut through, I think a lot of the smoke and fog and mirrors of the faux debates that we're seeing and get cut through to what is really an issue and what's worth talking about.

Dan Mclaughlin: Yeah, and separation of powers is, I mean, on some level there needs to be frankly a kind of physical separation of powers. And I mean, look, honest government is an enormously important value and worries about corruption are the stuff of politics and the stuff of law, and very rightly so, but at the same time, we know we've seen it throughout third world dictatorships and stuff, right? New dictator comes in or new man rises in the Communist Party or something and they declare whether it's in Saudi Arabia or China or somewhere in Latin America, an "anti-corruption campaign". And it usually starts by going after the people who are really corrupt, which is a good way to start it. But it often is just a window dressing for purging the regime of people who are disfavored. And I think when we are playing with fire here, I mean, we are not far removed from followers of the President storming the Capitol and going after Congress from followers of essentially the Senate majority leader protesting outside the houses the justices and an armed assassin showing up at Justice Kavanaugh's house.

We have averted catastrophe in both of those situations. I'm not sure we're going to keep being that lucky, and I don't know where the first shot might be fired, but it really is very, very dangerous stuff to move from simply saying, "We as press watchdogs need to keep a close eye on the people in power", which is entirely fair and legitimate to the point where you're actively trying to pour acid on the legitimacy of the other branches of government. And I mean, I could go on and on about how this is something we've seen with attacks on the Senate and the structure of the Senate, attacks on the electoral college, and attacks on the whole constitutional system. But I think attempts to put personal pressure on the justices and their families, which is, let's face it, this is the weak link. You want to get to somebody, you go after their wife, after their children, after the people in the family who maybe didn't sign up for all of this themselves. And so that's the part of this that gets really ominous and in which the press is playing, I think a role that is potentially actively very, very dangerous.

Allyson Newton Ho: And to me, Dan, if any, and I think again, Justice Scalia, as with all things, put this eloquently, if you are an originalist, if you are a textualist and you are not as a judge reaching results that you personally don't like, I Justice Scalia said, well, you're probably really not much of an originalist or a textualist at heart because that's part of the job. And I think when it comes to these principles, it is important to stand up for the First Amendment, for free speech, perhaps, especially in circumstances where you are not a fan of the view that is being expressed or the principle being applied. Because as you say, Dan, if you don't stand up for principle, even if you are not a particular fan of the result that application of that principle is going to reach in that particular case, it's only a matter of time before the worm turns and it's your free speech rights that are being affected. And there was a recent case involving a reporter who was jailed for asking the police a question, and that case drew amicus support from across the ideological spectrum because people across the spectrum recognized that the threat to freedom of speech in that case, even though they may not have been a fan of the views that the reporter was holding or expressing, it is the principle, is the principle involved. And that to me is why what we're seeing is so concerning because I fear with you, Dan, that what we could see is a situation where free speech rights, again, it's free speech, I sound like a broken record, but it's free speech for me, but not for thee, and that is not, that's not free speech at all.

Dan Mclaughlin: And I think maybe, I don't know if we should just go to a few audience questions in the queue in a couple minutes, but I mean, just one more thought here. One of the shabbiest things, I think in terms of the Times' reporting in this very story that shows the divide between the conservative justices trying to do the right thing by the law and how they get treated in the press is how the most conservative members of the court dealt with the 2020 election cases. The Times writes this saying, "Well, on January 17th, 2021 Alito was considering a case in challenging the election in which he ended up on the losing side." And it's a fairly egregious misrepresentation. Neither Alito nor any of the other members of the court ever ruled in favor of any of the efforts to overturn the 2020 election in the Texas v. Pennsylvania case that was filed in December of 2020 that essentially attempted to get the court to throw out the electors or electoral slates in a number of states.

Thomas and Alito dissented on the very narrow procedural question that they thought that since this was a case invoking the court's original jurisdiction, that the court had to accept the filing, but they would order no further relief. They were not going to rule in favor of any of this. And Alito's involvement in the case over at the Pennsylvania Supreme Court essentially throwing out its own deadline for late filing of votes. And what Alito did all along in that case before the election was to say, "You know what? We need to segregate these ballots precisely so that we don't have some post-election controversy where we don't know how many ballots are at issue." And so the case that was still pending in late January, it was after even Trump had thrown in the towel on continued legal challenges to the electors and was packing his boxes to get out of the White House.

And at that point, the only case that was left was a case to bring back the Pennsylvania challenge. But because of Alito's order in November, they knew how many ballots were at issue and both Alito and Thomas, even though they wanted the case heard, stressed that, "Look, this isn't going to affect the outcome of the election, won't affect the outcome of the presidential election. We just want to hear the issue and settle it so that we have the rules of the road down for future cases." And so the fact that the press sort of painted this as, "Oh, these guys are participating in the attempt to overturn the election" is completely dishonest, completely dishonest when, I don't know if Alito and Thomas voted for Donald Trump or wanted him to win the election, but they certainly weren't judging in a way that was consistent with that. They were judging in a way that was consistent with having principles about what the rules of the road should be for elections and that those should be consistently applied and that they should be based on evidence and law.

Jack Capizzi: Well, it seems like this would be a good point to go to some of the questions from the audience. I'll start with one attendee who asks, "Under the judiciary's ethics codes, judiciary employees are told upon hiring and in every training session not to allow spouses to put political signs in the family's yard. Why are Supreme Court justices seemingly exempt from these rules that apply to everyone else in the judiciary? Or is the administrative office giving them incorrect training?" Any responses there?

Dan Mclaughlin: I think first of all, I think there is a bit of a difference between a political sign and a flag because political signs have a much more targeted meaning. I think it's sort of unfortunate in a sense that founding era flags like the Appeal to Heaven flag have become, are now seen as partisan symbols just because one side has abandoned the American founding. That being said, look, I think, I mean the justices are under the rules that they have adopted for themselves, so they don't necessarily have to follow exactly all the same letter of the rules that necessarily are applied to other people in the system.

Jack Capizzi: Allyson, do you have any follow up there or should we take another one?

Allyson Newton Ho: No, let's take another one.

Jack Capizzi: All right, so this next guest asks, "I agree about the weaponization aspect of ethics, anything to destabilize the courts, but aren't the justices also giving them fodder by flying the flag upside down, et cetera?"

Dan Mclaughlin: I mean, I think you're always in a position certainly where you'd rather that your enemies have nothing to use against you. So I mean, I think it's fair to ask whether - fair to ask about some of these things. I think the flag thing in particular is just ridiculous though, because first of all, it's pretty clear that, I mean, there's a certain sense of grudging frustration in Alito's letter that he finally sent out. It's unmistakably the voice of a man who has been married for 40 years and knows that he doesn't always win arguments in his own home. So I think pretty clearly this is something that, and frankly, if you read the Washington Post account from Robert Barnes's reporting, I think Alito really comes off as attempting to play peacemaker and diffuse some of the confrontations between his wife and the neighbors, which is very much the temperament we want from a judge.

Allyson Newton Ho: Yeah, I think the only thing I'll add on that, on the fodder point is I think it might be a different circumstance if we were seeing the weaponized ethics pointing sort of indiscriminately across the spectrum and across the members of the court. But that's not what we're seeing. And so again, it's hard to escape the conclusion that what we're seeing is less concern about ethics and real corruption and really more targeting individuals because of the views that they hold and because they have the courage to hold those views.

Dan Mclaughlin: And there was an awful lot of politicization. I only scratched the surface of it here around Justice Ginsburg in particular. And essentially all the people who are attacking the conservative justices were participating in celebrating her as a cult hero at the time.

Jack Capizzi: All right, moving on to our next question. Do you both think that comments from Raskin, Durbin and Schumer, all lawyers, are made from legitimately held beliefs or are purely political?

Dan Mclaughlin: I think this is absolutely pure politics, absolutely pure politics, and I think, yeah, I mean I don't think - I think they're doing this completely out of opportunism and pandering to their base.

Jack Capizzi: Allyson, if there's no response for you, I'll move to the next one.

Allyson Newton Ho: Yeah, that's fine.

Jack Capizzi: This guest asks, "The title of this program refers to journalistic ethics. Are there any formal statements or codes of journalistic ethics that are relevant or should there be?"

Dan Mclaughlin: I mean, I think first of all, I'm not really a believer in journalistic ethics as such. I think journalists have to have a moral compass about their profession. And I think, look, there are fundamental differences in different types of journalism. If you are a news reporter, I think you have a certain obligation to your readers to try to play things straight. If you work for, I mean, I write for National Review, we don't pretend to be a straight news organization, we have a news department. But what I do, I'm an advocate. I try to give a fair set of context to what I write, but I don't pretend that I'm not taking a position. And so part of the issue obviously here is that you have what purports to be news departments - at the Times in particular - that are really engaged in activism. And I often distinguish between reporting and punditry, which is supposed to be kind of straight and advocacy where you're trying to, as you would as a lawyer, make an honorable case for your side. And then activism at the other end of the scale where the whole purpose of everything you're writing is to push events in a particular direction. And I think that to use a straight news department for the purpose of activism in a purportedly non-ideological newspaper is really now - okay, that's the way journalism was in the 19th century - but I think it's problematic and I think it's not at all what you should be doing if you have the institutional power of the New York Times.

Allyson Newton Ho: Yeah, I'll just add that thinking about the founders and our republic, our system of constitutional government, I mean the founders certainly saw a free press as critical because they saw it as sort of a mechanism to basically ensure that government for the people, by the people, and of the people remained that way so that the people were informed about what government is doing. So I would not want to be misunderstood today as in any way casting dispersions on the press generally, or certainly not around the Supreme Court Bar in particular. I mean Bob Barnes, who we both talked about today, I don't know anyone who covered the court with more integrity and expertise than Bob did for the years that he covered it. I think what Dan and I are concerned about is the hijacking of that process for various agendas that are not always open about what the agenda is or that it's sort of like Dan said, if you want to have an opinion piece and say, "This is my opinion and this is what I think", that's one thing. But to purport to be reporting on something, I think assumes an amount of objectivity that I think just some of the timing and other issues around some things have unfortunately regrettably in a way that I think have unfortunately cast doubt on many honorable people who are engaged in that process.

Dan Mclaughlin: And I think there's also, there's a bit of a lack of self-awareness here because I mean, if you are a practicing lawyer, you are not only subjected to ethical rules, but there are disciplinary authorities and you hear a lot of these people in the press saying how terrible it is that the Supreme Court is the judge of its own ethics. Know who else is the judge of its own ethics and not subjected to any professional sanction for violating them? Journalists! And the First Amendment protects that for reasons not so dissimilar from why judicial independence is protected. But it is the reality that if you violate your journalistic ethics at the New York Times, I mean, yeah, you could be fired by your boss if your boss doesn't like it, if your boss likes it, nothing happens to you.

Jack Capizzi: Well, sticking with the question of the journalists and the media in this situation, do you both think that some of the attacks here are misplaced since they're targeted at Thomas and Alito primarily who seem less likely to be swayed than someone such as Chief Justice Roberts, who might be easier to intimidate in this way?

Dan Mclaughlin: I mean, I certainly think that there's a certain irony in the campaign against Thomas because I don't know that we've seen anybody in public life in our lifetimes who was less easily swayed from his convictions than Justice Thomas. I think there is one and only one well-known way to persuade Justice Thomas of anything, and that's to write a Law Review article.

Allyson Newton Ho: Yeah, I again, I really don't think any of this would affect anyone on the court one iota. Who I do worry about in terms of the attacks because I think the purpose of the attacks on Justices Thomas and Alito, the target isn't just them. It is people who would be originalists, who would be textualists, who would follow in that mode of having courage and sticking to your convictions. I think part of what's going on in these attacks and attempt to delegitimize the court is it's almost, yes, it is directed fiercely at the two justices. I think as you point out, the irony is that those are two of the least likely to be swayed, which makes me think, I don't think they're the real targets. I don't think this is an attempt to persuade. I think it's an attempt to destroy them and to send a message to those who would follow in their footsteps, who would emulate them, that is, "If this is the path that you go down, this is what you can expect, not just for you, but for you and your family."

Dan Mclaughlin: Yeah, and I mean, I think that's an excellent point, and I hope that particularly the younger people listening in who are starting their careers or people who are maybe at a stage where they're considering becoming a federal judge, understand that it calls for the virtue of courage, and sometimes you're just going to have to take it and be prepared to take it and be prepared to face a very hard road.

Allyson Newton Ho: I completely agree with that. That's why Winston Churchill right said courage is the foundational virtue because without it, the others fall to the wayside.

Jack Capizzi: Well, I think we've got time for a few more here. This question relates to statements from members of Congress. This person asks, "Senator McConnell recently stated that Senators Blumenthal and Whitehead potentially engaged in unethical conduct based on their comments about Justice Alito. He referred to their comments ex parte communications and noted that they're members of the Supreme Court Bar. He also referred to the American Bar Association Code of Conduct. Are there any such rules that could apply to their conduct, and if so, have they violated them?

Dan Mclaughlin: Well, first of all, again, Congress does have certain immunities from the laws, often ones that it writes itself. I mean, the speech and debate clause allows 'em to say literally anything on the floor and be immune from any consequence for anyone other than the voters. And again, that exists for good reason. But look, I mean, I think White House in particular has been engaged in frankly open threats to the court. He has done so even in filings with the court did that a number of years ago, I think it might've been the Bruen case, it was one of the gun cases where basically his brief to the court essentially said, "If you don't desist from making rulings, we don't like, we'll be forced to consider court reform.' So I think it's rather menacing, but it's also - who can do anything about that? I don't think that the Supreme Court should be disbarring him. I think it's up to the voters of Rhode Island.

Jack Capizzi: Okay, onto our next question here. This person's asking "Why was little to nothing done to stop the demonstrations at the Justice's homes, violating the law and disturbing neighbors who should have the right to not be disturbed in such a manner?"

Dan Mclaughlin: I mean, I think it is really a scandal because those are against the law and it's the job of the Attorney General Merrick Garland to ensure that the law is enforced without fear of favor. He has certainly done that with extreme aggressiveness, for example, with regard to abortion clinic protests and has simply declined to enforce the law and allowed threats to the justices to continue.

Allyson Newton Ho: Yes, I find that extremely concerning, especially from the standpoint of what you allow to go forward. You should not be surprised, unfortunately, if you get more of it. And so I think across the board, again, let's have a discussion about what the rules should be, but certainly we should enforce equally and without fear or favor, the rules that are on the books, especially when it comes to protecting the lives of the justices and their families.

Dan Mclaughlin: Yeah, I mean, I lived, this is some 10 years ago now, but I lived across the street from a federal district judge who had received threats from a couple of different sources, and there was an NYPD car out in front of his house 24 hours a day for years on end. So it certainly would not be unprecedented to provide better protection to the justices and to keep people away from their homes. And the FBI and the Attorney General have not done that.

Jack Capizzi: Well, it looks like we've got one remaining question. It might be a good one to end on. Just looking into the future, given the situation in the press that it might set, do you both believe that Republicans will be able to resist the urge to play tit-for-tat with liberal judges when opportunities arise, and might this lead us down a more destructive path? Do you think that might happen, or do you think the future is perhaps brighter?

Dan Mclaughlin: I think history tells us that when norms collapse sooner or later, the other side starts retaliating at least somewhat in kind. I think I haven't seen a disposition on the Republican side to go nearly as far, and partly that's because of internal principle and habit, and partly of course, it's because it's easier to sort of let things slide when you're on the winning side, and right now conservatives have a majority on the court. It is also, of course, frankly, a fact that there are only three liberal justices and two of them are unmarried, so they don't have families to go after.

Allyson Newton Ho: And I think that question highlights for me why it is so important to speak out on the constitutional norms and on what they should be, so that going forward we don't see further diminishment of that and further weaponization and a further politics of destruction and not just disagreement.

Jack Capizzi: Well, I think that that seems a good point to wrap things up. Dan and Allyson, on behalf of the Federalist Society, I want to thank you both tremendously for sharing your time and insight with us today To our listeners and viewers, as always, we do welcome feedback by email at [email protected] and please do keep an eye on our website and your emails for announcements about upcoming programs. As Allyson mentioned, June will certainly be busy, so we will have a lot of coverage of the pending decisions. With that, thank you all very much for joining us today. We are adjourned.