The Supreme Court announced Monday that it has adopted an ethics code for the first time, a step that comes in response to its justices ― particularly conservative Justice Clarence Thomas ― facing scrutiny for undisclosed gifts from wealthy political donors.
But Democratic senators and progressive court reform groups are already saying it does next to nothing because there is no way to enforce it.
All nine justices signed onto the court’s new code of conduct. Justices Amy Coney Barrett, Elena Kagan and Brett Kavanaugh have previously voiced support for a formal ethics code in the aftermath of stories by ProPublica and other news outlets revealing Thomas’ previously undisclosed ties to conservative megadonor Harlan Crow.
“The undersigned Justices are promulgating this Code of Conduct to set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the Members of the Court,” begins the 15-page document, which lays out rules saying the justices should preserve the integrity of the court and convey a sense of impartiality in all cases.
Here’s a copy of the court’s new ethics code:
The justices state that most of the rules spelled out in the code “are not new” and that the court has long had the equivalent of “common law ethics” that other federal judges are bound to. There has been a “misunderstanding,” the justices say, that because the court has not had a formal code of ethics, they haven’t been restricted by any ethics rules.
“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,” said the justices.
In fact, there is no misunderstanding. The nation’s highest court has never had a formal code of ethics, and the result is that some justices have been taking luxurious gifts from powerful people with interests before the court, and then not reporting those gifts ― the very definition of unethical.
All other federal judges are banned from this kind of behavior, and it is spelled out in their code of ethics. The only rule that Supreme Court justices have had to follow that is similar to lower court judges is that they have to file annual financial disclosure reports. Beyond that, though, the idea has been that the Supreme Court justices don’t need a code of conduct because they can keep themselves honest. Except they’ve shown that they can’t.
The court’s new code states that justices “should avoid impropriety and the appearance of impropriety in all activities.” That includes not allowing social or political relationships to influence official conduct ― and making sure not to “knowingly convey or permit others to convey the impression that they are in a special position to influence the Justice.”
This sounds a lot like the kinds of activities that Thomas was participating in, as reported in a series of bombshell articles by ProPublica. For more than 20 years, Thomas was treated to luxury vacations by Crow that included cruises on his yacht, flights on his private jet and spending time with Crow’s friends at his private resort. Thomas reported none of this.
In the months since the ProPublica stories dropped, Democrats have been demanding that the Supreme Court create a code of ethics for itself, and vowing to pass legislation to do it if the court won’t. But the reality is that the votes simply aren’t there to pass a bill telling the Supreme Court how to behave.
And while Senate Judiciary Committee chairman Dick Durbin (D-Ill.) has been critical of the court’s inaction, he hadn’t taken any particularly aggressive action in response to it until recently.
Last week, Durbin scheduled a committee hearing to vote on issuing subpoenas to Crow and another prominent conservative legal activist with ties to Thomas, Leonard Leo of The Federalist Society. But the vote was suddenly postponed amid GOP efforts to prevent it from happening.
On Monday, Durbin said the Supreme Court’s new ethics code “marks a step in the right direction,” but still falls incredibly short.
“The court’s new code of conduct does not appear to contain any meaningful enforcement mechanisms to hold justices accountable for any violations of the code,” Durbin said on the Senate floor. “It also leaves a wide range of decisions up to the discretion of individual justices, including decisions on recusal from sitting on cases.”
Sen. Sheldon Whitehouse (D-R.I.), who has led the Judiciary Committee’s efforts to hold the Supreme Court accountable to ethics standards, called the new code “a long-overdue step” that doesn’t go nearly far enough.
“A code of ethics is not binding unless there is a mechanism to investigate possible violations and enforce the rules,” Whitehouse said in a statement. “The honor system has not worked for members of the Roberts Court.”
He gave a plug to his proposed Supreme Court ethics bill that would “create a transparent process for complaints” by allowing a panel of chief judges from the lower courts to investigate any complaints about justices’ behaviors.
Over in the House, Rep. Hank Johnson (Ga.), the top Democrat on a House Judiciary subcommittee focused on the federal courts, gave credit to the Supreme Court for “begrudgingly” doing something about its ethics woes. But then he listed off all the things it doesn’t do.
“I applaud their effort while noting that their code does not go far enough by not specifically dealing with private jet travel, it does nothing to reform amicus brief abuse, and leaves the door open wide for Federalist Society junkets for select justices,” Johnson said, referring to the conservative legal group that played a huge rule in selecting judges for former President Donald Trump.
“This code also strongly discourages recusals,” he continued. “Moreover, the code fails to provide a mechanism for the filing and adjudication of complaints.”
Progressive court reform groups had sharper language about the court’s so-called code, calling it a “joke” and a “PR stunt.”
“The word ‘should’ in a legal document like this is a total joke,” said Meagan Hatcher-Mays, director of democracy policy for Indivisible. “This fake code of ethics proves the Court won’t police itself, and is living in fear of real accountability. That means the Senate needs to act, and quickly.”
“Without a clear enforcement mechanism, this ‘code of conduct’ is just a PR stunt to appease the American public as it demands better from its Supreme Court,” said Caroline Ciccone, president of Accountable.US, a nonprofit focused on government corruption. “There existed clear disclosure rules when Justice Thomas maintained a decadeslong improper relationship with billionaire benefactor Harlan Crow — Thomas just chose not to abide by them.”
Gabe Roth of Fix the Court, which advocates for a number of Supreme Court reforms, said the problems with the court’s new ethics code include that there is no way for a lawmaker or member of the public to file a complaint against a justice for misconduct, and no way for an outside source to advocate for recusal when a justice participates in a case despite an obvious conflict.
“There are serious oversights,” Roth said. “If the nine are going to release an ethics code with no enforcement mechanism and remain the only police of the nine, then how can the public trust they’re going to do anything more than simply cover for one another, ethics be damned?”