The US supreme court has finally responded to mounting pressure over a spate of ethics scandals engulfing some of its senior rightwing justices by publishing its first ever code that sets out the “rules and principles that guide the conduct of members of the court”.
The 14-page document follows months of increasingly sharp criticism of the justices and their failure to apply to themselves basic ethical rules that bind all other judges in the US. Even as they released the code, however, the justices maintained their defensive posture, insisting in a brief statement that the furore of recent months had been a “misunderstanding”.
The statement said that the absence of a code had 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 newly published code is signed by all nine justices, and lays out the basic guardrails within which they are expected to behave. The first page states baldly that “a justice should avoid impropriety and the appearance of impropriety in all activities”.
In a section labelled “Outside Influence”, the code says that the nine members of the court should not “knowingly convey or permit others to convey the impression that they are in a special position to influence the justice”.
Although the new code is designed to quell the growing disquiet over the court’s ethical standards, the instant reaction to the guidelines was not effusive. Several experts on judicial ethics pointed out that it lacks any mechanism for enforcement, leaving the justices in effect to police themselves.
Gabe Roth, executive director of Fix the Court, a non-partisan group which advocates for reform, said the guidelines were largely “a copy-and-paste job” from the lower courts’ code. In the absence of any enforcement system, “how can the public trust they’re going to do anything more than simply cover for one another, ethics be damned?”
The president of the non-partisan watchdog group Accountable.US, Caroline Ciccone, said that without a clear enforcement mechanism, “this ‘code of conduct’ is just a PR stunt to appease the American public as it demands better from its supreme court.”
Sheldon Whitehouse, a Democratic US senator from Rhode Island, who has been leading the push from Congress for a supreme court ethics code, released a video on social media in which he identifies the “really, really basic questions” he said remain to be answered. They included: is there a place you can file a complaint against a justice? Who does the fact-finding about what happened? Do we get a public report at the end of the process?
The Brennan Center for Justice, a non-profit policy institute, said the code was “the bare minimum the court could have done” and lamented the lack of any independent review. “The court still has a long way to go before it can claim to have meaningfully responded to the public’s concerns.”
The cloud of ethical trouble that has consumed the court descended in April when ProPublica published a series of bombshell reports exposing the lavish international travel and vacations Clarence Thomas enjoyed through the largesse of the Republican mega-donor Harlan Crow. Later reports revealed that Crow paid for tuition for Thomas’s great-nephew.
A fellow conservative justice, Samuel Alito, has also found himself embroiled in ethics disputes after ProPublica revealed he had flown on a private jet owned by the billionaire Paul Singer on the way to a fishing holiday.
Amid a billowing public debate about the dubious ethical standards of the court that is responsible for upholding the country’s judicial authority, there was resistance from some justices to address the crisis. Alito threw fuel on the fire by telling the Wall Street Journal that Congress had no power to regulate the supreme court – a view that has been roundly dismissed by several constitutional law scholars.
The chief justice, John Roberts, who is more attuned to public opinion, appears to have been working behind the scenes to find a compromise that all nine justices could sign up to. In May, he told a legal event in Washington: “I want to assure people that I’m committed to making certain that we as a court adhere to the highest standards of conduct.”
The code includes a section setting out when justices should recuse themselves from cases. It specifically states that the justices must disqualify themselves when their spouse has “an interest that could be substantially affected by the outcome of the proceeding”.
In January 2022, the supreme court rejected by a vote of eight to one a request by Donald Trump to block White House records being handed to the House investigation into the January 6 insurrection at the US Capitol. The only dissent came from Thomas.
Thomas’s wife Ginni Thomas had been actively involved in efforts to undermine Joe Biden’s 2020 presidential election. It later transpired that texts between her and Trump’s former White House chief of staff Mark Meadows were among the batch of documents that were the subject of the supreme court ruling.
Another provision in the code says “a justice should not speak at an event sponsored by or associated with a political party or a campaign for political office”. It adds that a justice should not “knowingly be a speaker, a guest of honor, or featured on the program” of a “fundraising event”.
In September ProPublica revealed that Thomas had been the draw at least two donor events bankrolling the rightwing network of the energy tycoons the Koch brothers.
