Supreme Court adopts ethics code. Will it restore public trust?
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For the first time, the Supreme Court of the United States has adopted a formal code of conduct.
The 14-page document, issued this week and signed by all nine justices, comes after months of public pressure over alleged ethical lapses. It codifies what until now had been an informal ethical standard governing the high court. It also comes after favorable views of the Supreme Court reached an all-time low this summer, .
Whether the code鈥檚 existence itself will be enough to restore that trust remains to be seen. The code features the word 鈥渟hould鈥 53 times but is silent on what will happen if a justice veers from ethical standards outlined. And that, legal-watchers say, is a startling omission.
Why We Wrote This
U.S. Supreme Court justices had no code of ethics, until now. The new document lays out no penalties, and most of the rules will be enforced ... by the justices themselves. Yet with public confidence in the court at an all-time low, doing anything is a positive step, experts say.
The lack of a code is 鈥渟omething that has been a glaring oversight for so many years. ... But when it came time to put pen to paper, I think they fell short,鈥 says Gabe Roth, executive director of Fix the Court, a nonpartisan nonprofit advocating for more transparency in the federal judiciary.
But it鈥檚 positive the court has responded to that public pressure, he adds. 鈥淭hey represent all of us in one way or another 鈥 not in how they decide cases, but as an institution. And on institutional practices, there should be public pressure.鈥
For much of the year, the justices have faced questions about alleged ethical improprieties. The public scrutiny began with ProPublica reports detailing undisclosed gifts that Justice Clarence Thomas has received for decades from billionaire Republican donors, ranging from vacations and private jet travel to forgiven loans and tuition for a relative. Reports allege that Justice Samuel Alito also failed to disclose subsidized vacations. Justice Sonia Sotomayor and Justice Neil Gorsuch faced questions about publishing sales and questions of recusal.
While all other members of the federal judiciary are subject to the judicial code of conduct, the justices largely have policed their own compliance. The code aims to 鈥渄ispel this misunderstanding,鈥 the statement added, that 鈥渦nlike all other jurists in this country, [the justices] regard themselves as unrestricted by any ethics rules.鈥
鈥淚t is certainly significant that the court has finally adopted a code of conduct. ... It reflects that the public pressure and public attention about the court鈥檚 ethical shortcomings is having an impact,鈥 says Alicia Bannon, director of the Judiciary Program at the Brennan Center for Justice. But 鈥渋t was a real missed opportunity for the court to really get serious about ethics.鈥
What鈥檚 in the code?
features five canons of conduct for justices on and off the court, including recusal standards, and a commentary elaborating on the code. The code doesn鈥檛 appear to address the central concern many have with Supreme Court ethics rules: Enforcement is for the most part left to the justices themselves.
For example, a justice 鈥渟hould keep informed about [their] personal and fiduciary financial interests鈥 and 鈥渕ake a reasonable effort to keep informed about the personal financial interests鈥 of their spouse and children, the code states. Justices are supposed to seek guidance from the court鈥檚 Office of Legal Counsel and relevant judicial committees. There are no details on who or what would be making sure the justices make these efforts.
At times, broad and vague language leaves it unclear where the line is between proper and improper conduct. There are clear examples of when a justice should recuse themselves from a case, for example, such as when someone a justice or their spouse knows is a party to the case or representing a party in the case. But a justice should also recuse themselves 鈥渋n a proceeding in which the Justice鈥檚 impartiality might reasonably be questioned,鈥 the code states.
Lower court judges, meanwhile, must follow mandatory recusal rules. Parties in lower courts can also file a motion asking for a certain judge to recuse themselves.
The general language in the code 鈥渄oes suggest [the justices] consider this [as] aspirational, as opposed to binding,鈥 says Carolyn Shapiro, co-director of the Institute on the Supreme Court of the United States at the University of Chicago-Kent College of Law.
鈥淭here鈥檚 an extraordinary amount of discretion involved in applying these standards,鈥 she adds. But 鈥淚鈥檓 not sure it would be possible to write standards that don鈥檛 have that as an element.鈥
Does the high court need more leeway?
In a summary, the justices claim that the Supreme Court needs to have more relaxed ethical rules than lower courts do. Most appeals courts are made up of at least 11 judges, for example, whereas there are only nine justices.
鈥淭he loss of even one Justice may undermine the 鈥榝ruitful interchange of minds which is indispensable鈥 to the Court鈥檚 decision-making process,鈥 the summary reads. 鈥淢uch can be lost when even one Justice does not participate in a particular case.鈥
The document does acknowledge that more may need to be done to firm up the new code of conduct. The court 鈥渨ill assess whether it needs additional resources,鈥 it says. And the Office of Legal Counsel will 鈥渕aintain specific guidance [for] recurring ethics and financial disclosure issues,鈥 as well as provide annual training to justices and their staff.
The fact the document exists at all is noteworthy. As the high court admits, many of the rules aren鈥檛 new, but they have never been formally articulated for the public. That by itself is worthy of recognition, experts say, but the code鈥檚 deficiencies are as well.
鈥淚f you accept that the Supreme Court is differently situated than lower court judges, it makes it even more important to implement ethical safeguards on the front end to make sure ethical issues don鈥檛 emerge in the first place,鈥 says Ms. Bannon of the Brennan Center for Justice.
鈥淭he North Star needs to be: Are you preserving public confidence in the judicial system?鈥 she adds. 鈥淗ere there was a missed opportunity to really put in place safeguards that avoid putting justices in situations in the first instance that would undermine that confidence.鈥