The Supreme Court’s New Ethics Rules: Strong Brew or Weak Tea?
While it's widely seen as a good thing that the Supreme Court has released a code of conduct, its lack of an enforcement mechanism and its "shoulds" instead of "shalls" are drawing criticism.
After a series of embarrassing and at times alarming revelations about the extravagant yet undisclosed gifts that members of the Supreme Court, and in particular Justice Clarence Thomas, received from wealthy benefactors, the justices finally released a set of rules entitled the “Code of Conduct for Justices of the Supreme Court of the United States,” to which they all signed on.
Reform-minded legislators and some court watchers viewed the development with some optimism. The Court was at least now taking the issue seriously; getting something down in writing that all nine justices could sign on to is no small matter.
But skeptics were not impressed. The rules appeared to be advisory only in nature, often using language such as “should” instead of “shall.” The rules also contained some notable carve-outs that would allow the justices to continue their close association with controversial organizations, including conservative activist groups such as the Federalist Society.
Most importantly, the rules contained no actual enforcement mechanisms. What would happen, critics pointedly asked, if the justices simply disregarded their own rules? After all, as federal employees, there are pretty plain rules in place for the justices when it comes to gift disclosures, and they simply ignored them without consequence.
Let’s take a closer look at the new rules and highlight some questions they do and do not address. On balance, while there is some agreement that the rules are a step in the direction of accountability, they simply do not go far enough to address the deep corruption that has tarnished the reputations of some justices and by extension the Court itself. By stepping back and critiquing the way in which the rules were generated in the first place, we’ll expose some key reasons for that failure as well.
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A formalization of what they already do?
The new code of ethics for the Supreme Court contains some lofty language. The justices affirm that the members of the High Court should “maintain and observe high standards of conduct in order to preserve the integrity and independence of the United States Supreme Court.”
But if you hear the justices put it, this is really what they’ve been doing all along. The Court asserted in a statement accompanying the release of the code that the rules are “substantially derived” from an existing code of conduct—one already followed by the lower courts—that has been adapted to the “unique institutional setting of the Supreme Court.”
In fact, all this attention on their supposed lack of an ethical code has just been something of a “misunderstanding,” according to the justices. The statement claims that 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.” The Court continued, “To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct.”
But what about the corruption?
The code addresses one question on everyone’s mind: some justices’ acceptance of lavish gifts from billionaire friends. As CNN reported, the new code refers to an internal court department—the Office of Legal Counsel—for “recurring ethics and financial disclosure issues.” It stresses that “annual training” will be provided, as before. The code sets forth guidance on avoiding “the appearance of impropriety in all activities” and states that the justices should not allow “family, social, political, financial or other relationships to influence official conduct or judgment.”
A justice should not be “swayed by partisan interests” and should “make a reasonable effort” to be informed about the money interests of spouses and minor children.
Justices can attend fundraising events at a “law-related or other nonprofit organization” (e.g., importantly, the Federalist Society events) but they should not “knowingly be a speaker, a guest of honor, or featured on the program” of such an event—the kind of thing that got Justice Clarence Thomas into trouble with the Horatio Alger Association, where many of his rich benefactors are also members.
So that’s good, right? Not really.
While some see the adoption of a Code as a positive sign, many skeptics remain concerned it is merely window dressing that may enable rather than deter future ethical lapses. This is because of at least two key issues: 1) whether something falls within the code or not is left up to each individual justice rather than a neutral third party, and 2) there is no real enforcement mechanism to hold the justices accountable should they violate the Code.
Senator Dick Durbin, who chairs the Judiciary Committee, laid this out plainly. The ethics code marked a “step in the right direction,” he said, but the new rules still “fall short.”
“The court’s new code of conduct does not appear to contain any meaningful enforcement mechanism to hold justices accountable for any violations of the code,” Sen. Durbin said. “It also leaves a wide range of decisions up to the discretion of individual justices, including decisions on recusal from sitting on cases.”
Take the frequent replacement of the word “shall” with “should.” Lower courts are governed by a mandatory code that instructs that they “shall disqualify” whenever their impartiality reasonably might be questioned. But for the Supreme Court, this is still just optional.
“With 53 uses of the word ‘should’ and only 6 of the word ‘must,’ the court’s new ‘code of ethics’ reads a lot more like a friendly suggestion than a binding, enforceable guideline,” remarked Sarah Lipton-Lubet, president of the liberal Take Back the Court Action Fund.
In another section concerning outside influences, where judges of the lower courts are reminded to avoid the appearance of impropriety, the justices added the word “knowingly,” in effect granting them plausible deniability. “I didn’t know people would look upon it as improper,” a justice might one day explain.
In practice, then, this could mean that nothing at all will change. For example, even though Justice Thomas “should” have declined the house purchase, tuition support for a family member, that quarter million dollar RV loan that was wholly forgiven, his free membership in the nation’s most exclusive golf club, and all those private yachts and jets where his wealthy buddies simply want to chat to him about the direction of the Court, none of that was strictly mandatory to turn down. How ever could he have knowingly understood that this conduct was in any way improper?
And in any case, even if he continues to fail to disclose such activity, what’s the penalty and who would impose it? The new Code contains no process whatsoever for when justices violate the rules. And unlike their counterparts in the lower courts, the justices are not a self-policing group. Lower court judges are to take action when they learn a fellow judge has likely violated ethical rules. But no similar policing mechanism exists in the new SCOTUS code for the justices.
The Code even contains some express carve-outs that have raised some eyebrows. For example, as noted by Editor-in-Chief Jay Willis of Balls and Strikes, an outlet for progressive legal commentary, the Code “includes an all-but-explicit Federalist Society Convention Carve-Out”:
In deciding whether to speak or appear before any group, a Justice should consider whether whether doing so would create an appearance of impropriety in the minds of reasonable members of the public. Except in unusual circumstances, no such appearance will be created when a Justice speaks to a group of students or to any group associated with an educational institution, a bar group, a religious group, or a non-partisan scholarly or cultural group.
So how do we fix this?
The problem goes back to before a single word was written down and agreed to by the justices in this new Code of Conduct. The issue is that the justices themselves wrote it.
If you’re going to abide by a solid set of ethical rules that governs the behavior of your group, it’s a mistake to have the group itself craft it. It would be nearly impossible to maintain objectivity and not to slant the rules in a way favorable to your group. This is how we got “should” instead of “shall” and the lack of any reporting process for complaints or enforcement of violations.
Another problem with a self-crafted set of rules is that it needed to be signed on to by all the justices. This necessarily means compromises on word choices and mechanisms of accountability, leaving the whole project rather weak in its ultimate embodiment.
For the Supreme Court to truly be accountable, an outside, independent body needs to step in to impose the rules. If the justices balk that it can’t be Congress, then let there be a body of independent judges, whether active or retired, to pull it together.
If the Supreme Court wants to avoid the appearance of impropriety and assure the public that it is taking the issue of ethical reform seriously, it can begin by turning over the rulemaking on a Code of Conduct to another body. Otherwise, the Court’s rules are no better than heavily gerrymandered legislative district maps, drawn by those in power to keep themselves there without true accountability.
If the Court remains stubbornly unwilling to turn over the rulemaking itself to outsiders, then Congress must insist upon it by way of regulating laws. Nothing less stands a chance of restoring public faith in the High Court, tarnished today as never before by scandal, politicization, illegitimacy, and corruption.