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Wednesday, December 6, 2023
Courthouse News Service
Wednesday, December 6, 2023 | Back issues
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Supreme Court releases ethics code after criticism over gifts

The nine justices were the only members of the federal judiciary not bound by a code of conduct, until now.

WASHINGTON (CN) — The Supreme Court adopted an ethics code on Monday amid claims that its justices have violated laws and standards followed by the rest of the judiciary. 

Although the high court said it has long abided by common law ethics rules, criticism in recent years pushed the bench to clarify any misunderstanding over standards on the court. 

“The absence of a code, however, 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 wrote. “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.”

Derived from standards used by other judges, the court said its new code was adapted to the justices' unique needs. The code was written to allow the justices some wiggle room on interpretation, broad in some areas and narrow in others. The court expressed concern over forcing the justices to comply with regulations that would make it impossible to conduct the court's work.

“This concern is heightened with respect to canons applicable to Justices of the Supreme Court, given the often sharp disagreement concerning matters of great import that come before the Supreme Court,” the court wrote in commentary attached to the code. “These canons must be understood in that light.”

The court did not specify how it would force compliance with the new code. However, Chief Justice John Roberts has directed court officers to examine best practices from other courts to do so. 

“The court will assess whether it needs additional resources in its clerk’s office or Office of Legal Counsel to perform initial and ongoing review of recusal and other ethics issues,” the court wrote. “The court will also consider whether amendments to its rules on the disclosure obligations of parties and counsel may be advisable.”

The high court has eschewed adopting a code of conduct like the one federal judges observe, which involves upholding the integrity and independence of the judiciary and avoiding actual and assumed impropriety both on and off the bench.

Over the past year, however, media reports of the justices’ potential wrongdoings fueled criticism of the justices' lack of an ethics code. In April, ProPublica kicked off a barrage of coverage on high court ethics when it reported on Justice Clarence Thomas’ gifts from a billionaire Republican megadonor. The reporting described Thomas’ relationship with Harlan Crow, detailing the dozens of private jet flights and luxury vacations the Bush appointee accepted in gifts. 

Crow’s gifts to Thomas were in the hundreds of thousands of dollars — far above the $415 threshold for gifts under federal disclosure laws. The Texas real estate mogul also reportedly paid for Thomas’ grandnephew's private school education and bought the justice’s childhood home. Thomas’ mandated yearly financial reports did not include the gifts described by ProPublica. 

Thomas did not limit himself to only Crow’s generosity. The conservative justice also reportedly accepted a private jet flight from the Koch network in 2018 to attend the group’s private conference. The political organizing group often supports cases before the court. 

Justice Samuel Alito faced scrutiny for accepting a private jet flight and luxury Alaska vacation from hedge fund billionaire Paul Singer. He took the rare step of responding to these allegations in a Wall Street Journal op-ed, arguing the “charges” against him were false. Alito did not deny riding on the private jet, nor taking the trip, but claimed his behavior did not violate ethics guidelines. 


On the other side of the aisle, Justice Sonia Sotomayor was criticized for using her taxpayer-funded staff to increase her book sales. 

Lawmakers on Capitol Hill held hearings and filed complaints over ethics issues at the high court and even attempted to enforce a code upon the justices, however the once-bipartisan issue devolved into a solely Democratic goal, making it nearly impossible to move forward. 

Although there was no quick response to calls from lawmakers and ethics advocates for a set of standards, the justices gave hints that the high court was discussing the matter. 

Ethics experts have hounded the justices for years over when their recusal is required from a case. The code says the justices should step down if their “impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” 

The code describes instances of impartiality as having a personal bias concerning a party in a case, having participated at a prior stage of the proceeding, knowing that someone close to the justice has a financial interest in the subject matter at issue, or the justice's spouse is involved in the case. The code clarifies that participating in friend-of-the-court briefs does not warrant recusal. 

In its commentary section, the court notes that recusal for the justices presents larger barriers than for other judges. 

“Lower courts can freely substitute one district or circuit judge for another,” the court wrote. “The Supreme Court consists of nine members who sit together. The loss of even one Justice may undermine the ‘fruitful interchange of minds which is indispensable’ to the court’s decision-making process.”

The court describes a recusal as the equivalent of casting a vote against the party before the court. Because of these limits, the court said it adopted a narrow recusal code that will allow the court to function in an effective manner. 

“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 court wrote. “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.”

Because of the number of petitions before them, the court says recusal decisions will be made by individual justices. 

The code addresses the justices’ “extrajudicial activities” which have been at the center of ethics violation reporting surrounding the court. Justices can attend fundraising events, according to the code, but not events hosted by a group with substantial financial interest in cases before the court or likely to come before the court in the near future. 

“In deciding whether to speak or appear before any group, a Justice should consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public,” the code states. “Except in unusual circumstances, no such appearance will be created when a Justice speaks 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.”

Addressing gift acceptance directly, the code states that the justices must comply with gift regulations set out by the Judicial Conference. The code also addresses financial reporting — another area of heightened attention — saying the justices can accept reasonable compensation and reimbursement of expenses for permitted activities if the person paying them does not give off the appearance of influencing the justices’ duties. 

“For some time, all justices have agreed to comply with the statute governing financial disclosure, and the undersigned members of the court each individually reaffirm that commitment,” the code reads. 

Included in the code is a provision on “outside influence” — conduct some of the justices have been accused of partaking in by accepting gifts from parties with cases before the court. The code says the justices should not allow private interests to convey that they hold special influence over the justices.

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