The Supreme Court's new code of conduct.

Plus, a reader asks about the current state of the Republican party.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Quick hits.

1. The House passed a two-part stopgap spending bill yesterday by a 336 to 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. (The bill) 
2. Israel said its soldiers have entered Gaza's main hospital to carry out a "targeted mission against Hamas.” The director of Gaza’s hospitals said at least 650 patients remain inside the hospital. (The updates) 
3. Rep. Tim Burchett (R-TN) accused former House Speaker Kevin McCarthy of elbowing him in the back. An NPR reporter witnessed the incident, but McCarthy denied it (The incident). Separately, Sen. Markwayne Mullin (R-OK) challenged Teamsters President Sean O'Brien to a fight during a hearing on labor unions, prompting Sen. Bernie Sanders (I-VT) to intervene. (The other incident) 
4. Samuel Miele, a former campaign fundraiser for Rep. George Santos (R-NY), pleaded guilty to wire fraud. Miele faces a maximum of 20 years in prison. (The plea) 
5. In Michigan, a judge ruled that former President Trump can remain on the presidential primary ballot, rejecting a lawsuit arguing that he should be removed under the 14th Amendment. (The ruling)

Today's topic.

The Supreme Court's new code of conduct. 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 document, the court says "for the most part these rules and principles are not new," but the absence of a code "has led in 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 too accept the code. The rules will also be self-enforced by the justices, and it is unclear what — 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."

Sen. Sheldon Whitehouse (D-RI), 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 says justices can seek counsel from fellow colleagues, lower court judges, in-house legal counsel, and scholars. There is no ethics office or adviser 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 by Justices Sonia Sotomayor and Samuel Alito. We covered the debate around ethics controversies and codes of conduct here, here, and here.

Today, we're going to break down some reactions to this new code of conduct from the right and left, then my take.

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 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 wrote. 

“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 physical protest, 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 not only are acting unethically but are also not subject to any rules. That was always nonsense.”

In The Federalist, David Harsanyi argued “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 “to correct the public’s ‘misunderstanding’ regarding the justices’ ethical obligations. It won’t. Because there is 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 policy 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 given lifetime appointments and independence. Roberts 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 Somin wrote “there are legitimate concerns about enforcement” of the code.

“Most of the rules strike me as intuitive and eminently defensible. Among the highlights are guidelines for recusal—the first in the Court's over two hundred 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,” Somin 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. These considerations may block enforcement mechanisms as rigorous as critics might want.”

What the left is saying.

• The left thinks the code is pointless because it lacks an enforcement mechanism.
• Some call it a 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 current 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 luxurious gifts from major Republican Party donors” and “is 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 a 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 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 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 acknowledgment 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 a code of ethics is just what the doctor ordered. But without an enforcement 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.”

In The Nation, Elie Mystal argued 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’s outrageous behavior as ethically within bounds. According to the rules, not a single thing Thomas has done is a problem,” Mystal said. “Thomas isn’t even the biggest elephant-in-the-room that this code ignores. One of the consistent ethical failures of the current Supreme Court is not the fishing trips or free vacations the 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 OK,” Mystal wrote. “The court redefined ‘fundraising event’ as only those events where people are literally passing the hat around, as if somebody would ask the justices to make a solicitation speech at a telethon. The court’s definition of a fundraiser seems designed to exempt the annual Federalist Society gala, which the organization claims is not a fundraiser but merely a ‘dinner.’”

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

• Some good, some okay, some bad.
• The court responded to genuine public concerns and put in writing some very important guidelines.
• There are some major loopholes and a few notable omissions.

Sometimes when I write "my take," it feels like I'm hunting for a middle ground, but other times the moderate position feels natural to me. On those days, the convincing elements of multiple perspectives are evident, and black-and-white interpretations fall 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 public concern about potential conflicts of interest. 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 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, as banal as that may seem. There are omissions, which we'll talk about, but as Ilya Somin put it (in “What the right is saying”) 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 had been especially tricky for the court to navigate 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 in writing when a justice should 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.

The okay: 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 Somin 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 as enforceable by another government branch could have ended up facing legal or constitutional challenges that would... end up before the court. Hence the complexities of this issue.

But I never thought 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 addressing this issue in the near future.

"The Court will assess whether it needs additional resources in its Clerk’s Office or 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 federal and state courts."

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 made it clear they'll look for a palatable solution down the road — which is okay.

The bad: Perhaps my biggest concern with the document was its tone, and the way that tone bled into some of the actual rules. The court accuses the public of misunderstanding the justices’ behavior, which is a pretty bold and even offensive claim. The public isn't confused about a justice taking hundreds of thousands of dollars in travel and gifts from a wealthy political donor and not disclosing it — 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 won't meaningfully alter the perception of the court.

And despite the recusal guidelines appearing in my "good" section, there is effectively a semi-trailer 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 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 a step forward but not a very big one, and just as encouraging as its existence is, there is also a great deal of room to continue to iterate and improve it.

Your questions, answered.

Q: 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 ok to rally against big business (i.e. Desantis vs Disney, GOP vs Anheuser Busch etc), run up the national debt willy-nilly, increased regulation against schools and diversity/equity, plus putting religion back in educational systems. So how does it break out why people currently vote Republican? Taxes, religion, social beliefs? I seem to think many just want reduced taxes and choose to ignore the rest of new GOP beliefs. Or are there a large percent of the new Republican Party who just like to stir the pot ?

— Mary from Des Moines, Iowa

Tangle: The parties are always shifting to try to gain themselves a few more votes with independents and moderates, so it’s not very surprising for you to say that you feel like the Republican Party has changed from or felt different from the one you grew up in. As Hyrum Lewis explained to me in one of our most popular interviews ever, the left and right are largely a myth. There is no real, defining north star for Democrats or Republicans that is unchanging throughout their histories — political parties and coalitions and tribes are always changing.

But I don’t think that 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 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 pro-choice. For evidence of that, 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, 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. Some candidates, like Ramaswamy and Trump, have called for reducing the military budget and decreasing taxes to spur growth (though Trump has 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 abroad and certain social conservative issues (like gender), I also think they are largely still aligned on the "old" Republican philosophies you mentioned. They're just evolving how they want to act on them.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.

Under the radar.

YouTube has announced a slew of policy changes that it hopes will help inform viewers about content that has been generated by artificial intelligence. YouTube announced the changes in a blog post on Tuesday, which included a rule 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, wrote. “But just as important, these opportunities must be balanced with our responsibility to protect the YouTube community.” The Associated Press has the story.

Numbers.

• 26%. The percentage of Americans who said they had a great deal of confidence in the Supreme Court in 2021.
• 18%. The percentage of Americans who said they had a great deal of confidence in the Supreme Court in 2022, an all-time low since the General Social Survey (GSS) began recording this data in 1973.
• 36%. The percentage of Americans who said they had hardly any confidence in the Supreme Court in 2022. 
• 44%. The percentage of Americans who said they had a favorable view of Justice Clarence Thomas when he joined the court in 1992. 
• 39%. The percentage of Americans who said they had a favorable view of Thomas in July 2023.
• 57%. The percentage of Republicans who said they had a favorable view of Thomas in 2005. 
• 67%. The percentage of Republicans who said they had a favorable view of Thomas in 2023. 
• 20%. The percentage of Republicans who say the Supreme Court has too much power, according to a 2023 poll from Pew.
• 60%. The percentage of Democrats who say the Supreme Court has too much power.

The extras.

• One year ago today we covered last October's inflation numbers.
• The most clicked link in yesterday's newsletter was the Secret Service opening fire while protecting President Biden's granddaughter. 
• What was unsaid: 817 Tangle readers responded to our poll asking about the censure of Rep. Tlaib (D-MI), with 46% saying they condemn Tlaib's statements but disapprove of the censure. 41% condemn Tlaib's statements but approve of the censure, 10% condone Tlaib's statements and disapprove of the censure, and less than 1% condone Tlaib's statements and approve of the censure. 3% were unsure or had no opinion. "My choice is not without qualifiers... I do not condone everything she said, but most. And I take issue, as Saul does, with what she failed to say," one respondent said.
• Nothing to do with politics: A missing window pane discovered at 13,000 feet.
• Take the poll. What do you think of the Supreme Court's code of conduct? Let us know!

Have a nice day.

Today’s story is a first for this section: a Tangle exclusive report.

Two residents of Bend, Oregon, were headed home after a date night in September 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 on to 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 Bokowa, and her husband, Chadd. Since it was late on a Friday and no veterinarians were available to tend to the bird, Magdalena and Chadd brought it back to their home to rest and recover in their greenhouse for the night. 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 release it back into the wild. In front of the volunteers at Think Wild, the two bicyclists, and Chadd, 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 pictures and videos) on the official Tangle Facebook account. Magdalena has the story on our Instagram page.

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