The U.S. Supreme Court announced Monday that it’s adopting its first code of ethics following a private conference last Thursday, releasing a document that largely mirrors the code imposed on the rest of the federal judiciary. What’s lacking in the Supreme Court version, however, is any sense that the code will be enforced. Or that certain justices will pay attention to it, anyway.
The code is prefaced by a statement that basically says there isn’t anything of substance new here, and that the “Court has long had the equivalent of common law ethics rules, that is, a body of rules derived from a variety of sources.” According to the court, those sources include federal statute, the existing code for the judiciary, ethics determinations from the body that oversees the rest of the judges, and “historic practice.”
In other words, they have their own rules, but 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.” It’s not the behavior of the justices that makes it appear they believe themselves to be above the law, you see; it’s all a misunderstanding.
There are a few big loopholes here, too. Take the fact that nothing in this document says how these rules, or canons, will be enforced. Or the part of the commentary on the canons that says: “In many cases, however, these Canons are broadly worded general principles informing conduct, rather than specific rules requiring no exercise of judgment or discretion.” In other words, they’re suggestions more than rules because they are, after all, the “Supreme” Court. Those suggestions remain up to the justice to interpret for themselves—for now, anyway.
Chief Justice John Roberts, the document continues, has “directed Court officers to undertake an examination of best practices” in other court systems for potential enforcement mechanisms. It does not provide a timeline for that review or explain what the court will do with that information.
There are some syntactical differences between the two documents that speak volumes. For example, the existing code for other federal judges says: “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned” (emphasis added). However, the Supreme Court’s code says: “A Justice should disqualify himself or herself in a proceeding in which the Justice’s 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” (emphasis added). In fact, the word “shall” appears nowhere in the Supreme Court document.
Then there’s the use of “knowingly” in the Supreme Court’s code, as in: “A Justice should neither knowingly lend the prestige of the judicial office to advance the private interests of the Justice or others nor knowingly convey or permit others to convey the impression that they are in a special position to influence the Justice.” Or: “A Justice should not knowingly make public comment on the merits of a matter pending or impending in any court.” Or: “A Justice may attend a ‘fundraising event’ of law-related or other nonprofit organizations, but a Justice should not knowingly be a speaker, a guest of honor, or featured on the program of such event.” Because how often does a justice just stumble into an event not knowing that they’re going to be the star attraction?
Speaking of fundraising and access, here’s another glaring inclusion in this new code:
Since they added a whole section talking about just how fine it is for the justices to hang out with the very partisan, extremely conservative Federalist Society with the “appearance” of impropriety, at least you know they spent some time thinking about it.
This is a direct result of the Senate Judiciary Committee’s continued pressure and investigations into the undisclosed largesse Justices Clarence Thomas and Samuel Alito have enjoyed from wealthy, politically connected donors. It’s a nod to propriety from the court, but it’s no reason for the Senate to stop investigating the connections between the justices and their benefactors, in particular right-wing legal activist Leonard Leo and billionaire Harlan Crow.
The fact that there is no enforcement mechanism in this code is another reason why the Senate should continue to push its ethics reform efforts, which would allow for independent review of recusal decisions and more. What this proposal from the court does, more than anything, is codify the status quo in which the justices police themselves.
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