The Supreme Court’s new ‘code’ does nothing to enhance ethics
Members of the Supreme Court sit for a new group portrait following the addition of Associate Justice Ketanji Brown Jackson, at the Supreme Court building in Washington, Oct. 7, 2022. Bottom row, from left, Justices Sonia Sotomayor, Clarence Thomas, Chief Justice John Roberts, Samuel Alito, and Elena Kagan. Top row, from left, Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson.
On Nov. 13, the Supreme Court of the United States adopted a “Code of Conduct” for the first time in its history. This long overdue move is a clear reaction to growing public outrage stemming from a series of ethics scandals involving the justices, including failures to disclose lavish gifts and travel, special access for wealthy interest groups and potential misuse of judicial resources for personal gain.
As the head of a non-profit that has spent years advocating for Supreme Court ethics reform, I wanted to be happy about this announcement. As a Republican lawyer, I wanted justices appointed by presidents of both political parties to come together on this issue.
Unfortunately, despite its elegant legal prose and signatures from all nine justices, the court’s so-called Code of Conduct is no cause for celebration. Upon anything more than a brief glance, this new document reads alarmingly hollow, failing to bind the justices to any meaningful ethics rules that could restore public trust in the judiciary.
At the outset, the court explicitly states that “for the most part these rules and principles are not new,” despite the obvious need for enhanced rules to close existing ethical loopholes. Moreover, in the place of clear mandates about what the court “must” or “shall” do to protect its integrity, the code is filled with vague phrases and “should” statements that merely represent an inadequate promise of good behavior — a set of guidelines rather than a set of rules.
Most disappointing is the absence of any true method for enforcing the standards the court is pledging to follow. While every other branch of government has a dedicated body responsible for enforcing its respective ethics code, the Supreme Court does not even attempt to create one for itself here. Instead, it continues to rely on a system of self-policing where the justices decide thorny ethical questions on their own, such as when they have a conflict of interest or when they ought to recuse themselves from a case.
In addition, the court’s new code provides no process for investigating ethical violations, no method for interpreting ambiguous principles in complex real-world situations and no consequences for justices who simply refuse to follow the rules.
In short, there is no change from business as usual.
By releasing this weak code of conduct, the Supreme Court is attempting to appease the public without assuming actual accountability. It is avoiding the difficult challenge of real reform and hoping that good headlines will dispel the cloud of distrust that has formed above our highest court.
In the long run, this tactic will not succeed.
According to a recent poll, 75 percent of voters support a binding ethics code for the Supreme Court, including 81 percent of Democrats, 72 percent of Republicans and 69 percent of independents. This bipartisan consensus demonstrates a strong dissatisfaction with the status quo that will not be addressed by a cosmetic cover-up like the code offered by the high court this week. When ethical crises inevitably continue to develop, public demand for reform will surge again and again.
That is why my organization, along with many others, has sent a letter to Chief Justice John Roberts, calling on the court to create rules with an enforcement mechanism and true accountability. I hope the court will listen to this request.
But if the Supreme Court refuses to revise its code voluntarily, there are other ways to seek change. Congress has the constitutional authority to regulate Supreme Court ethics, and it should take action without delay. Importantly, Congress does not need to invent novel solutions and can require the Court follow specific ethics practices that have already proven effective in the executive and legislative branches.
The Supreme Court may usually have the final say on the laws of our country, but when it comes ethics, we must demand more. The highest court in our nation needs to be held to the highest standards.
Trevor Potter is president and founder of the Campaign Legal Center and a Republican former chairman of the Federal Election Commission.