The Supreme Court published a new code of conduct for its justices Monday amid a congressional effort to impose one on the high court following numerous reports of undisclosed gifts to conservative justices.
The 14-page code and commentary, published Monday and signed on to by all nine justices, is the first formal code of conduct for the life-tenured members of the nation’s highest court.
But in a brief introductory statement, the Supreme Court said that “for the most part these rules and principles are not new” and that they were issued to correct a “misunderstanding” that justices “regard themselves as unrestricted by any ethics rules.”
The document “largely represents a codification of principles that we have long regarded as governing our conduct,” the statement said.
The justices have been asked about a code of ethics for the high court for years. But public pressure to act on ethics concerns has escalated in recent months, and a few members of the court have publicly stated that the justices should have a binding ethics code.
The latest push started after a series of reports by ProPublica laid out undisclosed gifts and trips that Justice Clarence Thomas received from GOP donor Harlan Crow.
Congressional attention on Thomas has continued, including in a report last month from Senate Democrats that said he did not repay a “significant portion” of a $267,230 loan he received for a motorcoach from longtime friend Anthony Welters.
The code published Monday was mostly similar to a “statement of ethics principles and practices” that Chief Justice John G. Roberts Jr. published in April when he declined an invitation to testify before the Senate Judiciary Committee about ethics concerns.
In commentary included along with the code, the court said it explicitly adapts the binding ethics code imposed on lower court judges, but with “broadly worded general principles informing conduct, rather than specific rules requiring no exercise in judgment or discretion.”
The commentary noted that the justices had chosen to adopt more lenient recusal standards than lower courts because of the Supreme Court’s small nature. If one or more justices recuse from a case, it could have a substantial impact on the result, the commentary said.
“In short, much can be lost when even one Justice does not participate in a particular case,” the commentary said.
The code also explicitly says justices don’t need to recuse themselves from a case because of outside organizations that may file briefs in cases.
The court released the code days after the Senate Judiciary Committee delayed a planned vote to authorize subpoenas in its nascent probe into undisclosed gifts given by GOP-aligned donors to conservative justices.
Republicans on the panel offered dozens of amendments to subpoena authorizations for Crow and Leonard Leo, co-chairman of the board of directors of the Federalist Society.
In a party-line vote over the summer, the panel also approved a bill to impose a code of ethics on the justices. That effort has been opposed by Republicans, who have said they prefer that the justices adopt their own code.
Monday’s code of conduct may not mollify congressional Democrats or the advocacy groups that have pushed for the court to have a binding ethics code. The code published Monday doesn’t contain any enforcement provisions or the more stringent recusal standards that Democrats have sought.
Sen. Sheldon Whitehouse, D-R.I., one of the main backers of ethics legislation, said as much in a statement Monday, but he did praise the court for publishing the code.
“This is a long-overdue step by the justices, but a code of ethics is not binding unless there is a mechanism to investigate possible violations and enforce the rules,” Whitehouse’s statement said.
In the commentary, the justices said they may look at additional measures beyond the code published Monday. That includes purchasing a software system that could automatically screen cases in which a justice may have to recuse themself and possibly increasing disclosure requirements for parties before the court.
The code adopted Monday likely will not dissuade advocacy groups that have gained new prominence in the past few years as the 6-3 court swung to the right.
Sarah Lipton-Lubet, president of Take Back the Court Action Fund, one of the groups pushing Democrats to act on Supreme Court ethics, in a statement said the code released Monday “reads more like a friendly suggestion” than binding rules.
“If rollout of these new ethics suggestions proves anything, it’s that the justices are feeling the pressure; they know their rampant corruption is annihilating the court’s legitimacy, and they aren’t happy about it. But it also serves as a reminder that the Court cannot police itself,” Lipton-Lubet’s statement said.
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