An ethical quandary for the Supremes

I wish I was surprised that the Supreme Court is mired in ethical troubles. To be genuinely taken aback by its current difficulties would be testament to a high road always taken by the high court, a reflection of lives properly lived by the small cadre of men and women who serve as this nation's ultimate arbiters of fairness and justice.

Alas, the court is composed of people, not paragons, and while some surely are the latter, some surely are not.

And really, why should we expect them to be any different from the various politicians and business owners, athletes and coaches, priests and scoutmasters, teachers and cops, laborers and billionaires, journalists and artists, entrepreneurs and salespeople — in other words, the whole of humanity — who have danced around or trampled over codes of conduct spelled out in detail or merely understood?

The difficulty we humans have adhering to basic ethical standards is one of our more dispiriting traits.

The Supreme Court, which shouldn't need ethical guideposts, does not lack for them.

Potter Stewart, an esteemed associate justice from 1958 to 1981, offered a baseline definition. "Ethics," Stewart said, "is knowing the difference between what you have a right to do and what is right to do."

Stewart also famously said, "I know it when I see it." The topic was obscenity, but it could have been ethics.

One could quibble with Stewart's construct. Some unethical behavior, as when a public official accepts a bribe, is not something he or she has a right to do. And then we're off on a debate between what's a crime and what's an ethical lapse, as if those two are not overlapping circles in a Venn diagram.

So let's stipulate that Stewart's axiom gives us a sense of ethics, certainly enough to know that current Associate Justice Clarence Thomas should not have accepted numerous luxury trips from a Republican megadonor or sold a home of which he was a partial owner to the same donor, without disclosing any of it. Or that fellow Justice Neil Gorsuch should have reported the sale of a home he partly owned to the head of a major law firm. Or that Thomas should have recused himself from 2020 election cases given that his wife was deeply involved in trying to overturn the results.

Thomas' various protestations after Tripgate exploded remind us that those who have trouble with Stewart's axiom — those who say it's hard to determine what's ethical and what's not — are those who actively dabble on that borderline. Non-transgressors seem able to see the difference clearly.

The most depressing part of this affair is the reaction of Chief Justice John G. Roberts Jr. and his colleagues. That's not a criticism of his rejection of an invite to testify before the Senate Judiciary Committee, but of their apparent collective failure to see a need to strengthen their ethics laws. At the moment, those laws are not specific to the Supreme Court, not binding, and not subject to any kind of enforcement mechanism. The justices essentially police themselves — no check, no balance, no accountability. And now the Supreme Court has joined the growing list of institutions in which the public is losing confidence.

That's a problem for the nation; history tells us there is no sane or safe or satisfying future without ethics. More narrowly and immediately, it's a problem for the integrity of the court, each member of which should know better.

Earl Warren, the 1950s and 60s chief justice, observed that the law itself "floats in a sea of ethics." Or, at least, it should. Laws that once governed slavery and segregation reveal Warren's dictum to be more of a target than a truth.

But it's a target worth seeking. Always.

Columnist Michael Dobie's opinions are his own.

By Michael Dobie

michael.dobie@newsday.commwdobie

Michael Dobie is a member of the Newsday editorial board.