via WSJ:
“As political attacks on the Supreme Court become more heated, the institution could use more defenders. Most of the press and the professoriate are hostile. So it’s welcome that a leading member of the appellate bar is speaking up to defend the Court and urging his colleagues to do the same.
“I believe that the criticisms of the Court’s legitimacy are unfounded,” said Kannon Shanmugam in a notable speech Monday at Duke Law School. “But more than that, I believe that attacks on the Court’s legitimacy are dangerous, undermining public confidence in the Court and imperiling the rule of law.”
Mr. Shanmugam, a partner at the Paul Weiss law firm, has argued 38 cases at the Supreme Court. He clerked for Antonin Scalia on the Court and was an assistant to the Solicitor General at the Justice Department. “I believe that those of us who practice regularly before the Court, and who thus have a unique familiarity with the Court and its work, should speak up when we believe that the Court is being unfairly attacked,” he told the Duke audience. He’s right.
Take the claims of unethical conduct. “Many of the allegations are transparently insubstantial,” Mr. Shanmugam said, citing as an example the recent news of a $900 gift on Justice Samuel Alito’s financial disclosure. “Just last week,” he said, “we had the claim that there was something nefarious about a Justice and his spouse attending a concert with a, quote, ‘eccentric German princess.’” The proliferation of immaterial complaints suggests some critics “are more concerned with targeting particular Justices.”
He went on to discuss “two rules” that apply at the High Court. The “core ethical rule,” Mr. Shanmugam said, is that Justices recuse from cases in which their impartiality is “reasonably” in question, as “assessed from the perspective of a reasonable person, not someone who presumes the Justice is acting in bad faith.” Second is an obligation of financial disclosure.
Mr. Shanmugam: “In my view, in order to assert that the Court is acting ‘corruptly,’ critics bear the burden of showing, at a minimum, that the Court’s members have been intentionally violating those rules. That is a high burden, and I do not believe the critics have met it.” Complaints of alleged failures to recuse “largely center on the conduct not of the Justices themselves, but of their spouses.” Disputes about the Justices’ old disclosures of travel and “personal hospitality” reflect “genuine ambiguity about the meaning of the then-existing rules.”
There’s room for “healthy debate” about ethics rules, Mr. Shanmugam said, suggesting the Court might want to restrict lucrative book deals or require blind trusts. Yet this isn’t what the complainers want: “It is hard to escape the conclusion that many critics’ real beef is with the outcomes the current Court is reaching.””