[Experts say it is unclear if the new rules, which come after
reporting by ProPublica and others revealed that justices had
repeatedly failed to disclose gifts and travel from wealthy donors,
would address the issues raised by the recent revelations. ]
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THE SUPREME COURT HAS ADOPTED A CONDUCT CODE, BUT WHO WILL ENFORCE
IT?  
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Joshua Kaplan, Justin Elliott, Brett Murphy and Alex Mierjeski
November 13, 2023
ProPublica
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_ Experts say it is unclear if the new rules, which come after
reporting by ProPublica and others revealed that justices had
repeatedly failed to disclose gifts and travel from wealthy donors,
would address the issues raised by the recent revelations. _

, Stefani Reynolds/AFP/Getty Images

 

The Supreme Court on Monday released a code of conduct governing the
behavior of the country’s most powerful judges for the first time in
its history. But experts said it was unclear if the new rules, which
do not include any enforcement mechanism, would address the issues
raised by recent revelations about justices’ ethics and conduct.

The nine-page code, with an accompanying five pages of commentary
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was signed by all the sitting justices and covers everything from the
acceptance of gifts, to recusal standards, to avoiding improper
outside influence on the justices. The step followed months of
reporting by ProPublica detailing undisclosed gifts to Supreme Court
justices from wealthy political donors.

The code does not specify who, if anyone, could determine whether the
rules had been violated.

The new Supreme Court code’s lack of any apparent enforcement
process is “the elephant in the room,” said Stephen Vladeck, a law
professor at the University of Texas who studies the court. “Even
the most stringent and aggressive ethics rules don’t mean all that
much if there’s no mechanism for enforcing them. And the justices’
unwillingness to even nod toward that difficulty kicks the ball
squarely back into Congress’ court.”

Nevertheless, some leading observers of the court described the
creation of an explicit, written code as a landmark in the court’s
234-year history.

“The Supreme Court’s promulgation of a code of conduct today is of
surpassing historic significance,” former federal appellate judge J.
Michael Luttig told ProPublica. “The court must lead by the example
that only it can set for the federal judiciary, as it does today.”

A statement
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released by the court on Monday accompanying the code said it was
formulated to dispel “the misunderstanding that the Justices of this
Court, unlike all other jurists in this country, regard themselves as
unrestricted by any ethics rules.” It said the code “largely
represents a codification of principles that we have long regarded as
governing our conduct.”

A series of ProPublica stories this year detailed a pattern of
behavior by Supreme Court justices that legal ethics experts said was
far outside the norms of conduct for other federal judges. ProPublica
disclosed that Justice Clarence Thomas has accepted undisclosed luxury
travel
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from Dallas billionaire Harlan Crow and a coterie of other
ultrawealthy men
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for decades. Crow purchased Thomas’ mother’s home
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and paid private school tuition
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for a relative Thomas was raising as his son. Thomas also spoke at
donor events for the Koch network
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the powerful conservative activist group. Separately, ProPublica
revealed that Justice Samuel Alito accepted a private jet trip
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to Alaska from a hedge fund billionaire and did not recuse himself
when that billionaire later had a case before the court.

Reporting from other outlets, including The Washington Post
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and The Associated Press
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has added to the picture. The New York Times revealed that Thomas
received a loan from a wealthy friend to purchase an expensive RV.
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A Senate investigation later found Thomas did not repay the loan in
full.

Federal judges below the Supreme Court have long been subject to a
written code of conduct
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the foundations of which were set down a century ago
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following a major ethics scandal in the judiciary. Lower court judges
are subject to oversight by panels of other judges, who review
allegations of misconduct.

The high court’s new code of conduct is separate from an existing
federal law that requires all federal judges including the justices on
the Supreme Court to annually report income, assets and most gifts on
a publicly available disclosure form. The law, which passed after the
Watergate scandal, has been at the center of the controversies
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involving Thomas’ undisclosed gifts. Thomas and Alito have argued
they were not required to disclose the luxury travel, and Thomas’
lawyer has said
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that “any prior reporting errors were strictly inadvertent.”

The new document largely echoes the code that applies to lower court
judges. Many of its prescriptions are lofty but vague. It requires the
justices to “act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary.” It
prohibits justices from soliciting gifts, practicing law or sitting on
cases where their “impartiality might reasonably be questioned.”
It states that the justices should not engage in “political
activity,” but it does not define what that means.

Court observers are likely to spend weeks parsing the differences
between the new code and that of the lower courts. Small changes were
made without explanation. For instance, lower court judges are
prohibited from lending “the prestige of the judicial office to
advance” their own private interests. The justices are merely
prohibited from “knowingly” doing so.

Whether any of the conduct that sparked the push for a formal ethics
code would now be prohibited seems to remain open for interpretation.
Take Thomas’ appearances at Koch network events. A federal judge
told ProPublica that if he’d done the same as a lower court judge,
it would’ve violated prohibitions against fundraising and political
activity and he would’ve been subject to a disciplinary proceeding.
It’s unclear if the high court’s new code would bar such
activities or if each justice would answer such questions for him or
herself.

Sen. Sheldon Whitehouse, D-R.I.
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who has introduced a bill
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that would require the Supreme Court to adopt an enforceable code of
conduct, said in a statement that the new code fell short of what is
needed.

“The honor system has not worked for members of the Roberts
Court,” he said. “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 bill advanced out of the Senate Judiciary Committee in
July, but it has since stalled in the face of GOP opposition. It would
create an enforcement mechanism for the court’s code of conduct and
set up a process where panels of appellate judges would investigate
potential ethics violations.

It’s unclear whether the court’s release of the code will affect
the ongoing Senate investigations into justices’ relationships with
businessmen and others involved in undisclosed travel and gifts. For
months, the Senate Judiciary Committee has been seeking information
from Crow and others about undisclosed gifts to Thomas.

Last week, Senate Judiciary Democrats deferred an effort
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to subpoena Crow in the face of intense Republican opposition on the
committee. Sen. Dick Durbin, D-Ill.
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the panel’s chair, said last week the committee would continue its
efforts to authorize subpoenas in the near future.

The court’s new ethics standards are in many ways more lenient than
those governing employees of the executive and legislative branches.
There are still few restrictions on what gifts the justices can
accept. Members of Congress are generally prohibited from taking gifts
worth $50 or more and would need preapproval from an ethics committee
to take many of the gifts Thomas and Alito have accepted.

Jeremy Fogel, a retired federal judge in California who had publicly
called for the Supreme Court to adopt an ethics code
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said Monday that he was “heartened to see that the justices
unanimously have recognized the need for an explicit code of
conduct.”

“Whether it will make a difference in the justices’ day-to-day
actions or in public perceptions of the court remains to be seen,”
Fogel said.

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UPDATE, NOV. 13, 2023: This story has been updated throughout.

ProPublica is a nonprofit newsroom that investigates abuses of power.
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Joshua Kaplan [[link removed]]

Josh Kaplan is a reporter at ProPublica.

[Portrait of Justin Elliott]
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Justin Elliott [[link removed]]
Justin Elliott is a ProPublica reporter covering politics and
government accountability. To securely send Justin documents or other
files online, visit our SecureDrop page
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reach him through one of the methods below.

[Portrait of Brett Murphy]
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Brett Murphy [[link removed]]
Brett Murphy is a reporter on ProPublica’s national desk. His work
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uncovering a new junk science known as 911 call analysis won a George
Polk Award, among other honors.

[Portrait of Alex Mierjeski]
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Alex Mierjeski [[link removed]]
 
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* US Supreme Court; Code of Conduct;
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