On Monday, the Supreme Court released a long-awaited Code of Conduct, defining a set of rules that should generally govern the justices’ behavior. It’s a major first step towards rebuilding public faith in the Court, which is in crisis thanks in large part to its failure to build a functioning ethics regime. Specifically, over the past two years, the high court has experienced a series of ethical scandals that have deeply harmed the legitimacy of an institution whose entire existence depends on public support.
The public has seen how wealthy activists and benefactors were able to buy access to Justices Clarence Thomas and Samuel Alito in exchange for undisclosed vacations and other expensive gifts, allowing the justices to lead a life of luxury far beyond most Americans’ wildest dreams. These scandals have created the impression that the Supreme Court is for sale, and that non-wealthy and unconnected people will not get a fair hearing at the highest court in the land. This crisis of confidence threatens the very foundations of the judiciary—and it all stems from the Court’s functionally nonexistent ethics regime.
That is why the new Code of Conduct is such an important first step. But it must be just that: a first step. We are glad to see that the Code reaffirms the Court’s commitment to the Ethics in Government Act, the statute governing financial disclosure, but we still need a full accounting of the multitude of lavish trips and other undisclosed gifts accepted by Justice Thomas and Justice Alito. The Code itself also has many shortcomings, loopholes and ambiguous phrases that may well allow the justices to behave in much the same way they have been behaving for the last thirty years. We’ve detailed some of the most important problems below.
- The Code has no enforcement mechanism: without an enforcement mechanism and an investigative process, the newly issued Code of Conduct has no teeth. That is why enforcement proposals, including the ones CREW has endorsed such as the creation and appointment of an Inspector General for the federal judiciary or establishing a group of retired judges to guide justices’ recusal decisions, remain crucial.
- Too many provisions appear aspirational rather than mandatory. Although the new Code borrows its aspirational “should” language from the code of conduct that applies to lower court judges, the lack of mandatory “shall” or “must” language is problematic at the Supreme Court level because there is no enforcement mechanism at the high court. For instance, at the lower court level when a judge violates their code’s “should” language, outside groups can file ethics complaints with the Administrative Office of the U.S. Courts; there is no avenue to file a complaint with the Administrative Office if a justice violates the new Code. That is why mandatory language is so crucial.
- The gift rules are a particular concern. Although the Judicial Conference Regulation on Gifts has a mandatory gift prohibition on lower court judges accepting gifts “if a reasonable person would believe it was offered in return for being influenced in the performance of an official act” or “from the same or different sources on a basis so frequent that a reasonable person would believe that the public office is being used for private gain,” the Court’s new Code only says justices “should comply” with the regulation and does not mandate compliance. Without a firm compliance standard or an enforcement mechanism like those applicable to lower court judges, it’s not at all certain Justice Thomas would incur any consequences under the new Code if he were to continue to allow his lifestyle to be subsidized well beyond that afforded to him by his judicial salary through expensive trips and other gifts from billionaires and political activists—even though the frequency and volume of such gifts would cause a reasonable person to conclude that Justice Thomas was using his public office for personal gain.
- The Code does not adequately address conflicts of interest arising from the justices’ spouses, including when a spouse’s employer, client or donor is or represents a party before the court. Its standards would allow for spousal salaries and income to be subsidized by such persons and for no disqualification on the part of a justice as long as the spouse’s compensation isn’t affected or tied to the outcome of a particular case, although the Code requires disqualification in narrowly prescribed circumstances when a spouse served as lead counsel for a party below or is an equity partner in a law firm representing a party.
- The Code states that work on amicus briefs will never create a conflict of interest: By making no allowance for conflicts of interest arising from amicus curiae, the Court fails to take into account the very real influence that amicus briefs have had on recent Court opinions.
- In another disturbing development, the Court introduces a “knowingly” standard for rules governing outside influence, public commentary, and fundraising activities. In doing so, the Court further insulates itself from accountability by adopting an intent standard that is far higher than the standard applicable to lower court judges under comparable rules.
- The disqualification standards are insufficient, especially given the Court’s permissive rules on gifts, spousal conflicts of interest, and amicus curiae. The Court codifies the justices’ duty to sit and presumes their impartiality unless disqualified. But, rather than use the statutory “shall” standard that requires their disqualification from proceedings in which their impartiality might reasonably be questioned under 28 U.S.C. § 455, and which is incorporated into the lower courts’ code of conduct, the Court adopts the less stringent “should” standard for themselves. “Should,” in this case, conveys a more aspirational quality than the more clearly mandatory “shall”. Additionally, the Court introduces a new “unbiased” element to the “reasonable person” standard that is used when a justice is considering whether to disqualify themselves from proceedings in which their impartiality might reasonably be questioned.
- Moreover, the Court subjugates the justices’ duty of disqualification to the duty of necessity, which calls on all nine members to sit and hear a case in full and precludes their withdrawal as a “matter of convenience or simply to avoid controversy.” If the duty of necessity is so important, then the Court must at the outset adopt more stringent gift rules and other prophylactic measures regarding conflicts of interest to prevent questions from even arising about justices’ lack of impartiality and independence and the ensuing need for their disqualification. The way to avoid an ethics controversy is not to ignore it, but to prevent it.
- The Court also adopts permissive rules pertaining to participation in, and service with, outside organizations and fundraising activities. These rules seemingly ignore the reality that some nonprofit organizations advocate for the adoption of a particular judicial philosophy or support a particular political, business, or ideological agenda. When a justice is repeatedly affiliated with such an organization, and is permitted to serve as an officer, director, trustee, nonlegal advisor or even as an active participant or regular speaker, they not only lend the prestige of their judicial office to those causes, but more broadly convey the impression that such an organization is in a special position to influence them. These ethical concerns are further compounded when the justice is authorized to have their name and judicial designation listed on the organization’s letterhead and even more so when that letterhead is used for the organization’s fundraising. It is not enough that the Code cautions the justices to consider whether speaking or appearing before such groups would create an appearance of impropriety. If the duty of necessity is to take primacy over the duty to recuse, then the Code should include concrete prophylactic measures, like curtailing justices’ ability to participate in outside activities, so that justices’ are not put in the position to compromise the Court’s larger overriding obligation to maintain its impartiality and independence.
Ultimately, while it is worth applauding the court for taking this step, it is crucial that we fully understand how seriously this Code falls short and what we can do to turn it into a truly functioning ethics regime.