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Friday, December 8, 2023 | Back issues
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Supreme Court fails to quiet ethics critiques with new code of conduct

The high court aimed to tamp down criticism that its members were not accountable to ethics standards, but its code of conduct has only set off a new wave of admonishment.

WASHINGTON (CN) — The rush of excitement following the Supreme Court’s capitulation around adopting an ethics code has quickly soured as court watchers poke holes in the new code of conduct allowing the justices’ ethics blunders to continue unabated. 

“The best part about the new #SCOTUS Ethics Code is that you can lay it next to the lower courts’ code &, based on changes in the latter, see exactly where the 9 excuse their own ethics lapses,” Fix the Court, a judiciary watchdog group who has advocated for ethics standards for the justices, wrote on X, formerly Twitter. 

It was clear from the very first page of the code that ethics hawks might be disappointed by what was to come in the next dozen or so pages. The justices prefaced the release with a statement that said none of the rules or principles in the code of conduct would be new or anything the justices’ didn’t already abide by. 

In the court’s view, the months of reporting suggesting the justices had not only committed ethical lapses but also violated federal financial disclosure laws were a “misunderstanding” of the court’s commitment to ethics rules, and the new code would clear up any confusion. 

“In other words, I don't think they acknowledged in particular that they’re subject to anybody else’s rules. The court is just basically saying, this is what we've done all along, we just haven't spelled it out before,” Richard Briffault, a professor at Columbia Law School, said. 

The justices’ code of conduct was derived from standards followed by lower court judges with alterations to suit the high court. The deviations from lower court guidelines were few but noteworthy, such as adding “knowingly” to the prohibition on allowing special interests to exploit a justice for gain. 

Under the code followed by any other court across the country, judges “should neither lend the prestige of the judicial office to advance private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge.” 

The Supreme Court’s version loosens this provision, stating that the justices are only bound by this rule if they know a special interest is going to engage in this behavior. 

Some of the most intense ethics scrutiny of the court has been aimed at Justice Clarence Thomas for accepting gifts from billionaires without disclosing them in his yearly forms. The new code forces justices to comply with restrictions on accepting and soliciting gifts, stating the Judicial Conferences Regulations on Gifts are “now in effect.” This addition appears to be a deviation from the statement that the justices had already been following rules enforced by the lower courts. 

The justices also added a provision that would allow them to attend speaking events where their presence could create the appearance of impropriety. The code says justices should consider whether their attendance at an event might make reasonable members of the public think they may be biased and avoid those circumstances, but it says a justice can’t create such an impression when speaking to “a group of students or any other group associated with an educational institution, a bar group, a religious group, or a non-partisan scholarly or cultural group.” 

It’s not completely clear which organizations could be considered bar groups, but the caveat might be enough to absolve the court from appearances before controversial groups. 

“When they say that no one can question the impropriety of talking to a bar group, I don't know what a bar group is,” Briffault said. “Is the Federalist Society a bar group, or, for that matter, the American Constitution Society on the other side? They've gotten some grief for some of those speeches or attending some of those events, but I think they might be bar groups. I'm not 100%.”

Ethics watchdogs were most disappointed by the code’s lack of enforcement mechanisms. Based on the language of the code, each justice will be responsible for policing themselves. The court included no mechanism for what would happen if a justice failed to recognize they violated the code.

"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?” Gabe Roth, executive director at Fix the Court, said. 

Despite the critiques of the code itself, there is still some acknowledgment that adopting and publishing these standards is a big step for an institution that is notoriously slow to change.

“I do think it is a big deal for the court to actually issue a set of rules to essentially empower the chief justice to at least monitor, publicize and possibly create a set of practices that Supreme Court justices need to follow, that's not nothing,” Paul Schiff Berman, a law professor at George Washington University Law School, said.  “And so I think we should not be so quick to dismiss it just because there's not a clear way to enforce such rules — while recognizing that, you know, that the enforcement mechanism is relatively weak.”

Some court watchers see the publication of the new code of conduct as a step toward transparency, even if it's a small one.

“It's useful to the press and the public because they can now actually say, here's a rule that you said you're following, are you actually following it in this particular instance?” Briffault said. “So I think in that sense, it does give a standard that a public can hold the justices to, even if, to be honest, it's a kind of a squishy standard, but it's something.”

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