The Supreme Court’s new ethics code

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In a bow to critics, the U.S. Supreme Court released its new ethics code on Nov. 13, 2023, following revelations that justices accepted undisclosed luxury trips and engaged in conflicts of interest.

The 15-page code of conduct co-signed by all nine justices is a new attempt by the high court to reveal what Chief Justice John Roberts says is the court’s existing conduct standards. To that end, the document says in its opening statement that the rules are “not new” and that the court has “long had the equivalent of common law ethics rules.”

“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 document further says.

“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.”

Breakdown of the honor system

The unwritten ethics honor system in place before did not restrict members of the Supreme Court from engaging in ethical misbehavior. So there really is no “misunderstanding” about this among the public, as the new ethics code condescends to protest that there is. To the contrary, the recently revealed ethics lapses are glaring and obvious, affecting justices of both political parties.

Earlier in 2023, ProPublica chronicled decades of private jet and yacht excursions paid for by high-profile Republican donors Harlan Crow and Leonard Leo, who bankrolled undisclosed luxury travel for Justices Clarence Thomas and Samuel Alito. The nonprofit investigative outfit also revealed that Thomas did not disclose a real estate transaction with Crow, and that Alito stayed at a fishing lodge in Alaska owned by a major Republican donor and businessman, Paul Singer, whose company had cases before the court.

Without disclosing any of this, Thomas and Alito voted in favor of decisions that benefited the business interests of both Crow and Singer.

In July, according to Associated Press reporting, Justice Sonia Sotomayor directed taxpayer-funded court staff to schedule speaking engagements related to her literary work and to pitch sales of the justice’s books. The AP made numerous public records requests, which uncovered details about the court staff’s improper involvement in promoting Sotomayor’s memoir and children’s books — from which the justice has earned millions of dollars.

Not far enough

While the new code of conduct marks a step in the right direction, it does not contain any enforcement or review mechanism short of impeachment to hold justices accountable for ethics violations. It still leaves a wide range of ethics decisions up to the personal honor system, including decisions on recusal from sitting on cases where gift-givers’ interests are at stake.

The new code is strewn with nonmandatory verbs such as “should” and “should not” – rather than the mandatory “shall,” which appears in other judicial ethics codes to which the justices themselves were bound in the past, while sitting on other courts.

With regard to potential influencers connected to cases before the court, it says, “A justice should not allow family, social, political, financial or other relationships to influence official conduct or judgment.” This suggests that justices can still accept expensive gifts from people connected to cases before the court, as long as the justices simply claim on the honor system that they were not actually influenced — exactly as they have done in the past.

The onus on seeking recusal falls on the parties to each case, who understandably may be reticent to seek recusal in a case where a justice may have a conflict of interest, without access to any independent process of review or accountability. In addition, seeking recusal may increase the possibility that the Supreme Court may be unable to reach a majority opinion.  As to this, the commentary to the new code contains the ultimate escape language – indicating that “the duty to sit and . . . the time-honored rule of necessity may override the rule of disqualification.”

This suggests that the justices’ own claim of indispensability can excuse their sitting on a case where they have a conflict of interest. But there may be other solutions to achieving a majority, short of an ethical lapse.

All of this spurred critics to seek a more transparent process for complaints and enforcement, other than just the honor system.  In June, the Senate Judiciary Committee voted in favor of legislation that would not only require the high court to enact an ethics code, but also would set up a mechanism to try to enforce it.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Andre M. Davis

Eric Easton

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Julie C. Janofsky

Ericka N. King

Susan F. Martielli

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.