On Monday, the Supreme Court announced the adoption of a new code of conduct for the justices. The document is 14 pages (with the Code laid out over nine) and includes five cannons of conduct on topics ranging from what kind of activities the justices can engage in, to when they must recuse themselves from a case. This is the first time in history that the Supreme Court has adopted its own ethical Code.
In a statement, the justices said that principles in the Code are not new. However, the Court wants to ensure the public that it is committed to ethics. This announcement comes in part due to recent public scrutiny of the highest Court’s ethical behavior. The Code’s introduction states that a lack of a published 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 ethics rules.”
Where does Supreme Court scrutiny stem from? Let’s get into the details.
Ethical Controversies Surrounding Supreme Court Justices
Recent media attention has highlighted ethical controversies involving Supreme Court Justices, raising public concern about their adherence to ethical standards. Notable incidents include Justice Clarence Thomas’ delayed disclosure of trips funded by billionaire GOP donor Harlan Crow and his wife Ginni Thomas’ involvement with Trump-allied lawyer John Eastman, linked to attempts to overturn the 2020 election outcome.
Additionally, Thomas faced criticism for not disclosing Crow’s funding for his great grandnephew’s private school education. Justice Samuel Alito also came under scrutiny for not reporting a fishing trip with Republican donor Paul Singer, who had cases before the Court. Similarly, Justice Sonia Sotomayor was questioned for using court staff to organize book tours, a task seen as beyond a clerk’s duties.
Amidst these controversies, public approval of the Supreme Court has plummeted. In response, Justices Amy Coney Barrett, Elena Kagan, and Brett Kavanaugh publicly advocated for a specific code of conduct for the Court. This, combined with public pressure and growing concern over judicial ethics, led to the announcement of a new ethics code for the Supreme Court.
Supreme Court Code of Conduct Highlights
The Supreme Court’s Code of Conduct clarifies that the rules inscribed are not new but rather a collection of principles and laws that the Court already follows. The Code begins with the statement: “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.”
Principles specific to the Supreme Court include that the Justices should not engage in public speaking or fundraising for political events or situations that promote commercial products. In fact, Cannon 5 states that Justices should refrain from political activity. It states that Justices should not act as leaders in political organizations, make speeches for a political organization or candidate, and, finally, justices should not solicit funds or contribute to political organizations or candidates.
Another pertinent part of the Code defines a Justice’s family member. It states, “A member of a Justice’s family means any relative of a Justice by blood, adoption, or marriage, or any person treated by a Justice as a member of the Justice’s family.”
The Commentary at the bottom of the Code goes into detail regarding recusal. Recusal is situated under Canon 3 of the Code, which discusses when a Justice should disqualify themselves from a case. However, the Code clarifies that “the rule of necessity may override the rule of disqualification.” Regarding recusal, the Code Commentary states, “Because of the broad scope of the cases that come before the Supreme Court and the nationwide impact of its decisions, this provision should be construed narrowly.”
The Justices make clear that the Supreme Court differs from lower courts because in lower courts if a judge recuses themselves, they are replaced by another judge. This is different at the Supreme Court level. If a justice recuses themselves, it could have a severe impact on the outcome of a case that has a nationwide impact because the justice’s are not replaced.
The Commentary states that the Code is “tailored to the Supreme Court’s placement at the head of a branch of our tripartite governmental structure.” Meaning, its rules are slightly different from lower courts by nature of it being the highest court in the land.
The Code highlights essential ethical duties that all Justices must abide by. It is a step in the right direction in swaying public opinion that the Supreme Court is held to ethical standards just like all lower court jurists. However, the Code has faced harsh criticism because it does not contain any enforcement mechanism.
No Enforcement Mechanism
Since its announcement on Monday, the Code has faced backlash from the public, media, and legal community. Many argue that the Code has no enforcement mechanism and, therefore, people question how much weight it carries if there is no mechanism to hold the Justices accountable if they commit ethics violations.
Critics argue that “the biggest omission is the glaring absence of accountability.” One writer for the Washington Post stated this is a code of “‘you’re not the boss of me’ –an approach that would be more tolerable had some justices not already proved themselves to be tone-deaf and negligent, or worse, [not] complying with the rules.”
Many argue that the Court needs to strike a balance between safeguarding independence and being held accountable for ethics violations. Without an enforcement mechanism, this may prove difficult.
There have been suggestions to create a panel of judges or retired jurists “who could examine ethics complaints and compliance issues.” Another recommendation is to have the Justice Department have an inspector general oversee ethics complaints and investigate violations.
Some experts in legal ethics gave the documents measured approval. A law professor from the University of Virginia stated it was “a small but significant step in the right direction.” Another ethics professor at the Washington University of St. Louis said, “it’s good that they did this…that they feel some obligation to respond to public criticism…”
The implementation of a Code of Conduct at the Supreme Court represents a significant step for the justices. Although the move comes amid ongoing public discussions about the need for enhanced ethical standards within the Court, it indicates a recognition of the importance of maintaining and demonstrating ethical integrity at the highest judicial level.
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