Supreme Court Attempts to Address Ethics Concerns with New Code of Conduct | Dec 2023
December 2023 | Volume 15, Issue 5
Read the full article from CNN.com
According to the article, the Supreme Court recently announced a code of conduct to bolster the public’s confidence in the court after months of news stories alleging that some of the justices have been skirting ethics regulations.
In a brief statement, the justices said that the code is “substantially derived” from an existing code of conduct that applies to the lower court but has been adapted to the “unique institutional setting of the Supreme Court.”
Enforcement Issues
While the justices reiterate in the code they should “maintain and observe high standards of conduct in order to preserve the integrity and independence of the United States,” they fail to explain how the code would work and who would enforce it, and acknowledge they had more work to do, including on financial disclosures.
The court acknowledged it might need additional resources to “perform initial and ongoing review of recusal and other ethics issues.”
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 justices said in a statement. “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.”
Pressures Regarding Development
The move comes after mounting pressure from Democrats in Congress who threatened to pass legislation that would mandate ethics reform. As a part of their inquiry, Democrats on the Senate Judiciary Committee said they planned to hold a vote to authorize subpoenas for two major conservative players close to conservative Justices Clarence Thomas and Samuel Alito.
“The justices are clearly reacting to recent public criticism by formally adopting this code,” said Steve Vladeck, a Supreme Court analyst and professor at the University of Texas School of Law.
What’s Missing?
“But the key is what’s missing: how are these rules going to be enforced, and by whom? Even the most rigorous ethical and financial reporting requirements won’t mean very much if there’s no one monitoring the justices’ compliance and no pushback when those rules are violated,” Vladeck added. “And on that subject, today’s release says only that it will be up to the justices themselves. It’s hard to imagine that such a milquetoast response will satisfy most of the court’s critics.”
In the statement, the court emphasized that the rules and principles outlined in the document are “not new.”
For instance, the new document says that the justices will continue to rely on the Office of Legal Counsel, an office inside the court, for “recurring ethics and financial disclosure issues,” but makes no mention of how any violations would be enforced. It also stresses that “annual training” will continue to be provided although it does not mention whether such training is mandatory.
Titled “Code of Conduct for the Justices of the Supreme Court of the United States,” the code includes guidance on how a judge might avoid “the appearance of impropriety in all activities” and should not allow “family, social, political, financial or other relationships to influence official conduct or judgment.”
It specifies that a justice should not be “swayed by partisan interests,” and that they should “make a reasonable effort” to keep informed about the personal financial interests of the justice’s spouse and minor children residing in the justice’s household.
The code makes clear that while a justice may attend a fundraising event at a “law-related or other nonprofit organization,” they should not “knowingly be a speaker, a guest of honor, or featured on the program” of such an event. Much of the language comes from a code of conduct that is already enforced for lower-court judges.
Issues Regarding Particular Justices
The high court appeared to address some of the recent ethics scandals plaguing it, including ones involving Thomas and liberal Justice Sonia Sotomayor.
Part of a 4-page “commentary” accompanying the code seemed to reference criticism Thomas faced earlier this year after ProPublica reported that a GOP megadonor paid the private boarding school tuition for the justice’s grandnephew – assistance that Thomas did not disclose on his annual financial reports.
“For example, a Justice who has school-age nieces and nephews need not recuse from a case involving student loans even though the disposition of that case could substantially affect the terms on which the Justice’s relatives would finance their higher education,” they wrote in a section related to when a recusal should occur.
As part of the code, the justices are barred from using chamber resources “to engage in activities that do not materially support official functions or other activities permitted under these Canons,” as well as prohibited from using “the prestige of the judicial office to advance the private interests of the Justice or others.”
This summer, an Associated Press report raised questions about Sotomayor’s use of taxpayer-funded court staff to coordinate book sales, with the outlet saying that the code of conduct for lower-court judges instructs those jurists to not use their staff for those purposes. Republicans on the Senate Judiciary Committee are urging a subpoena to go out to Sotomayor’s staff.
Senate Judiciary Chairman Dick Durbin said that the ethics code marked a “step in the right direction,” but that the newly adopted rules “fall short” of his expectations for the court.
“All of these are important steps, but they fall short of what we could and should expect when the Supreme Court issues a code of conduct,” the Illinois Democrat said. “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. It also leaves a wide range of decisions up to the discretion of individual justices, including decisions on recusal from sitting on cases.”
Carrie Severino, a former Thomas clerk and the head the conservative Judicial Crisis Network, said on X that she doubts the code “will satisfy Senate Democrats and their liberal dark-money backers, as their campaign has never really been about ethics but rather intimidating a Court that it despises for being faithful to the Constitution.”
The Senate panel began its work after ProPublica reported during the high court’s last term that Harlan Crow – the GOP megadonor – had paid for lavish trips for Thomas and allowed him to fly on his private jet. Thomas said that he didn’t report the gifts because the rules at the time did not require such disclosures.
The outlet also published a report that Alito did not disclose a luxury 2008 fishing trip he took on a private jet that was organized in part by Leonard Leo, a longtime player in conservative judicial circles. According to the publication, the justice’s stay was provided free of charge by another major donor to the conservative legal movement, Robin Arkley.
In an unusual move, Alito responded to the allegations before they were published. He authored an op-ed in the Wall Street Journal arguing that the criticisms against him were not “valid.” Alito said that under the rules that were in effect at the time, hospitality did not have to be reported.
Last week, Durbin said he would continue to press for a vote to enforce subpoenas against Crow and Leo who had declined to comply with committee requests for information.
“Senate Judiciary Committee Democrats remain united in our effort to implement an enforceable code of conduct for Supreme Court justices,” said Durbin, an Illinois Democrat.
Transparency
Chief Justice John Roberts has previously rebuffed requests to testify before Congress on the matter, although recently he and Justices Elena Kagan, Brett Kavanaugh and Amy Coney Barrett had expressed various levels of support in public appearances for the justices themselves to offer more transparency when it comes to alleged conflicts of interest.
Barrett, for example, said last month that it would be a “good idea” to adopt a formal code, “particularly so that we can communicate to the public exactly what it is that we are doing in a clearer way than perhaps we have been able to do so far.”
Last April, the court tried to stem criticism by releasing a new statement signed by all nine justices that was meant to provide “clarity” to the public about the high court’s ethics practices. The document outlined that the high court voluntarily followed some of the rules employed by lower court judges and consulted a “wide variety of authorities to address specific ethical issues.”
But the effort fell far short of what critics said was necessary.
Discussion Questions
- This is the first formal code of conduct for the U.S. Supreme Court. Does that surprise you? Why or why not?
This question invokes a subjective reply, so student answers may vary. Your author is very surprised that this is the first formal code of conduct in the 233-year history of the U.S. Supreme Court (Congress created the Supreme Court with its passage of the Judiciary Act of 1789).
Although ideally, Supreme Court justices would act beyond reproach, avoiding even the appearance of impropriety and seeking to apply the law in an objective way, that idealism has come under scrutiny in recent years as an increasing number of scandals plague the high court. - As the article indicates, there is no formal enforcement mechanism associated with the Supreme Court Code of Conduct. Does this surprise you? Why or why not?
This question invokes a subjective response, so student answers may vary. Your author is both surprised and disappointed that the Supreme Court Code of Conduct does not have a formal enforcement mechanism.
In a fundamental law class, students learn that law is defined as a set of enforceable standards that govern conduct. The rhetorical question here presents: “What good is the law if it is not enforceable?” Self-policing does not seem to be a plausible option in this case, particularly given the ethics scandals that have already plagued the Court. - Read the actual language of the Supreme Court Code of Conduct accessible via Teaching Tip 1 of this newsletter. In your reasoned opinion, does the Code of Conduct adequately address the ethics issues addressed in Article 1? Why or why not?
This is an opinion-based question, so student responses may vary. In your author’s opinion, the Supreme Court Code of Conduct does not adequately address the ethics issues addressed in Article 1. A reading of the Code of Conduct confirms what is indicated in Article 1, the fact that it is completely devoid of any enforcement mechanism associated with its proscribed actions. Again, the question presents: What good is the law if it is not enforceable?”
In your author’s opinion, Congress’s enactment of an enforceable code of conduct for Supreme Court justices would appear to “fill the void” in this case, but from the moment of its passage, critics would raise constitutional objections to it (more particularly, in terms of whether Congress has the constitutional right to constrain the Supreme Court’s power). Your author believes that if Congress had the constitutional authority to create the Supreme Court (as it did with the passage of the Judiciary Act of 1789), there is a strong argument to be made that it also has the power to regulate it.