The justices of the U.S. Supreme Court think we the public are confused.
Just because the justices have committed a series of ethical transgressions, like accepting lavish gifts from benefactors with business before the court and failure to disclose those lavish gifts, we seem to have come to the erroneous conclusion that the justices “regard themselves as unrestricted by any ethics rules.”
Perish the thought.
So, just to clear up this little “misunderstanding,” the justices issued a code of conduct that won’t curb corruption. Even worse, the code clearly is meant to justify the unethical practices that gave rise to this so-called “misunderstanding.”
The most obvious weakness of the new code is the lack of any enforcement mechanism. This is not an oversight. The federal judiciary’s code of conduct, from which the Supreme Court justices adopted theirs, calls on judges to “maintain and enforce high standards of conduct.” The Supreme Court justices excised the word “enforce” and called upon themselves merely to “maintain and observe” such standards.
The justices seem to have taken every opportunity to dilute and defang ethical standards in their effort to prove they want to abide by them. Should Supreme Court justices “lend the prestige of the judicial office” to advance their own private interests or permit others “to convey the impression that they are in a special position to influence the judge?” Well, no — but only if they do it “knowingly.”
No penalties for misconduct
If a Supreme Court justice has reason to believe that another justice has violated the code of conduct, should they be obliged to “take appropriate action,” as other federal judges are obliged to do? The justices think not. They will be happy to take action in response to employee misconduct, but what their fellow justices do apparently is none of their business. Or ours.
While Supreme Court justices “have agreed to comply with the statute governing financial disclosure,” the code of conduct strongly indicates they don’t believe the statute applies to them and their compliance with it is strictly voluntary. The code of conduct for lower court judges explicitly instructs them to “make required financial disclosures … in compliance with applicable statutes …”
The Supreme Court justices didn’t even bother to finesse the lower court’s recommendation that judges “divest investments and other financial interests that might require frequent disqualification.” They just scrapped that one entirely.
They also threw out a caution against accepting outside compensation that exceeds “what a person who is not a judge would receive for the same activity.”
The Supreme Court justices don’t see themselves in need of a code of conduct; it sees the public it serves in need of gentle instruction. We, not they, are the problem.
The justices would like to clarify that Clarence Thomas and Samuel Alito didn’t accept lavish gifts of travel from politically active billionaires who had business before the court or fail to disclose those gifts because they “regard themselves as unrestricted by any ethics rules.” They did it because, according to the code of conduct, such behavior apparently doesn’t violate any ethics rules. We, the public, were just too uninformed to realize that.
As an effort at reform, the new code of conduct is worse than no code at all. It doesn’t discourage conflicts of interest; it condones them. It doesn’t clarify what should happen in cases of misconduct; it establishes that nothing should happen. Rather than remain silent and be thought corrupt, the justices decided to speak up and remove all doubt.
If the justices’ only intention in issuing a code of conduct was to dispel any misunderstanding about their attitude toward ethics restrictions, they may safely consider it a success. To those of us who were hoping for actual reform, it is a deliberate slap in the face.
Marc H. Morial is president and CEO of the National Urban League. He served as mayor of New Orleans from 1994 to 2002 and is a graduate of the University of Pennsylvania and the Georgetown University Law Center.
The Sun-Times welcomes letters to the editor and op-eds. See our guidelines.
