(Tuesday PO) The Supreme Court adopts first-ever code of ethics

[GuideToACrazyWorld]

The U.S. Supreme Court Monday adopted its first-ever ethics code, bowing to pressure from Congress and the public. All nine justices signed onto the new code, which was instantly criticized for lack of an enforcement mechanism.

In an unsigned statement, the justices said though there has been no formal code, they have long abided by certain standards.

"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," they 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."

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Public trust in the court has fallen amid revelations that Justice Clarence Thomas received gifts and travel from Harlan Crow, a Republican donor. Justice Samuel Alito has also been criticized for failing to disclose a fishing trip with Paul Singer, a big Republican donor with cases before the Supreme Court.

In recent weeks, Justices Amy Coney Barrett and Elena Kagan publicly supported calls for an ethics code.

What does the code say?
With the release of the code Monday, the court is trying to be somewhat specific about what justices can and cannot do. But, there is a lot they can do and no enforcement mechanism as to what they are supposed not to do.

For example, the code is quite specific about financial transactions: Justices can make a real estate transaction, as long as it's not before the court. But the code simply reaffirms the commitment to the disclosure provisions that are in the existing code for all federal judges.

The code is also specific about recusal if family members, such as spouses, children or grandchildren, have a case before the court or is a lawyer before the court.

Clarence Thomas, Samuel Alito and the crisis of confidence in the Supreme Court
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Clarence Thomas, Samuel Alito and the crisis of confidence in the Supreme Court
But the code also makes exceptions for justices that may not apply to lower court judges. For instance, a justice doesn't have to recuse if his or her relative files a friend of the court brief because the court receives so many of these briefs, sometimes over 100 in a single case, and it has loosened the rules on these briefs being filed.

In recent months, critics have raised concerns about Justice Thomas' wife, Virginia Thomas, and her activities to promote political causes that end up before the court. The code says that if a spouse or child living with the justice has a substantial interest in the outcome of a case — financial or any other interest — the justice is supposed to recuse. That would have meant, for example, that Justice Thomas would have to recuse in cases in which his wife has played a major role. Last year, Thomas did not recuse, and was the sole dissenter, in a case about whether former President Trump's White House records had to be turned over to the House committee investigating the Jan. 6 riot at the U.S. Capitol, despite Ginni Thomas' texts to then-White House Chief of Staff Mark Meadows urging him to take steps to overturn the 2020 presidential election results.


Others have raised concerns about Justice Sonia Sotomayor's use of court staff in setting up her schedule and trips including her book tour. Now, the court's new code says that for security reasons, justices are permitted to use their office resources in making plans. And, the code even specifies that a justice may appear at events where their books are being sold.

What have the court's critics said about the ethics code?
Critics remain unsatisfied, particularly with the code's lack of enforcement provision.

Progressive group Take Back the Court said in a statement, "With 53 uses of the word 'should' and only 6 of the word 'must,' the court's new 'code of ethics' reads a lot more like a friendly suggestion than a binding, enforceable guideline." Another group, United for Democracy, said, "While it's great to see the Supreme Court finally respond to public pressure and acknowledge that they have serious ethics and corruption issues that must be addressed, the code of ethics announced today is woefully inadequate."

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Meanwhile, NYU School of Law professor Stephen Gillers called the code "pretty decent."

"It is more detailed than I expected," Gillers said, even though there is "no enforcement" mechanism.

[GuideToACrazyWorld]

It's a start.

[Tarmaque]

It's a start.

Well, kinda. I'd be more sanguine about it if they'd included some kind of enforcement mechanism. Any kind.

[GuideToACrazyWorld]

Well, kinda. I'd be more sanguine about it if they'd included some kind of enforcement mechanism. Any kind.

Technically that enforcement mechanism exists, but it's in the power of Congress. This is the court trying to convince Congress they don't need it.

[Tarmaque]

Technically that enforcement mechanism exists, but it's in the power of Congress. This is the court trying to convince Congress they don't need it.

Yeah, I know. However with Congress so evenly divided there's little or no chance they'll act.

[Mysterious Cat]

I'd be more sanguine about it if they'd included some kind of enforcement mechanism.

The problem is that the Supreme Court is the highest court in the land, which means there is no Supremer Court to enforce a code of ethics against it. Congress can't just create another tribunal to hear legal disputes about the court that the Constitution says is the highest tribunal for resolving legal disputes.

Congress does have the power to impeach a Justice if they behave badly per the Constitution, but that requires 1/2 of the House and 2/3 of the Senate, which is next to impossible as a practical matter. So ultimately Congress has control over the court, but that is because the Court was created by the Constitution, and therefore that is what "the people" have chosen (via their Constitution). Which is in reality a kind of artificial way of looking at it. But short of amending the Constitution Congress has ceded a great deal of substantive decision making power to the judiciary. Or alternatively the Court took it for itself in Marbury v. Madison, which was the court using its power as a court to determine the scope of its power as a court. Which implicates the same problem.

Congress does have a certain degree of regulatory power over the Court- the Constitution for example doesn't say how many Justices there should be, and it is accepted that Congress can add or subtract seats. But when it comes to Congress telling the Justices what to do you start running into separation of powers issues, on which SCOTUS (again per Marbury) has the final say (short of amending the Constitution). So, you see the problem.

[GuideToACrazyWorld]

Yeah, I know. However with Congress so evenly divided there's little or no chance they'll act.

I don't think the divide is the issue on this one. As time has gone by Congress seems to be increasingly afraid of doing their jobs.

[GuideToACrazyWorld]

I'd be more sanguine about it if they'd included some kind of enforcement mechanism.

The problem is that the Supreme Court is the highest court in the land, which means there is no Supremer Court to enforce a code of ethics against it. Congress can't just create another tribunal to hear legal disputes about the court that the Constitution says is the highest tribunal for resolving legal disputes.

Congress does have the power to impeach a Justice if they behave badly per the Constitution, but that requires 1/2 of the House and 2/3 of the Senate, which is next to impossible as a practical matter. So ultimately Congress has control over the court, but that is because the Court was created by the Constitution, and therefore that is what "the people" have chosen (via their Constitution). Which is in reality a kind of artificial way of looking at it. But short of amending the Constitution Congress has ceded a great deal of substantive decision making power to the judiciary. Or alternatively the Court took it for itself in Marbury v. Madison, which was the court using its power as a court to determine the scope of its power as a court. Which implicates the same problem.

Congress does have a certain degree of regulatory power over the Court- the Constitution for example doesn't say how many Justices there should be, and it is accepted that Congress can add or subtract seats. But when it comes to Congress telling the Justices what to do you start running into separation of powers issues, on which SCOTUS (again per Marbury) has the final say (short of amending the Constitution). So, you see the problem.

Much more complete discussion of then my one line throw away post. I really wish you posted here more.