Another Ethics Failure at the Supreme Court
The US Supreme Court has released a new set of ethics standards in order to stop the subpoena process of billionaire witnesses, but it has no means of actually reforming the actions of Justices.
The United State Supreme Court adopted its first formal code of ethics on Monday, in response to the months of criticism over the undisclosed gifts and lavish trips received by some of the Justices. This latest release comes after Congressional Democrats threatened to pass legislation that would mandate ethics reform, as members of the Senate Judiciary Committee had planned to hold a vote to authorize subpoenas for two major conservative players with close ties to Justices Clarence Thomas and Samuel Alito.
Congressional pressure has now resulted in a nine-page code, released with five pages of commentary to accompany it, that covers everything from the acceptance of gifts, to recusal standards, to an approach for avoiding improper outside influence on the justices. The document was superseded by the following statement below and was also signed by all the sitting Justices to show an acknowledgment of the new policy:
SUPREME COURT OF THE UNITED STATES STATEMENT OF THE COURT REGARDING THE CODE OF CONDUCT
The undersigned Justices are promulgating this Code of Conduct to set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the Members of the Court. For the most part these rules and principles are not new: The Court has long had the equivalent of common law ethics rules, that is, a body of rules derived from a variety of sources, including statutory provisions, the code that applies to other members of the federal judiciary, ethics advisory opinions issued by the Judicial Conference Committee on Codes of Conduct, and historic practice. The absence of a Code, however, has 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. To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct.
NOVEMBER 13, 2023
This newly published set of ethical standards does not impose any significant new requirements, and there is no described means for investigating any wrong-doing or any enforcement procedures to correct infractions. The most egregious part of this latest attempt to appear as if Justices are capable of self-regulation, comes from the introduction of the new rules, where the Justices acknowledge public outrage over ethics violations to “dispel” a “misunderstanding” that the Supreme Court is “unrestricted by any ethics rules.”
The condescending prologue continues to explain that these new regulations was issued is basically a codification of the principles that already existed that the members of the Supreme Court have “long regarded as governing our conduct.” It is as if the Chief Justice has said to the American public, “look everyone, you are not smart enough or educated enough to understand this, but we are so superior to any other branch of government that we’ve all been following a ‘scout’s honor’ approach to billionaires throwing large sums of money at us and it has always worked.” But, it clearly isn’t working.
This latest attempt to rectify the public perception of some really bad ethics decisions by sitting Justices fails across the board. It only emphasizes that nothing has really been done to regulate the highest court all along, and that the Justices — who have life-time tenure with no practical way for removal — believe they are completely above any form of ethical rebuke. The fact that Justice Roberts refused to testify before Congress on this very issue only supports this argument.
There is also nothing in this new set of guidelines that explains how some of the recent allegations against Thomas and Alito will be handled, if at all. Under this set of ethics rules, the Justices would have already policed themselves and not engaged in any actions they found to be improper. By not launching any kind of new investigation into the allegations that billionaires have legally benefited from their financial favors, the United States Supreme Court is telling us all that there was no wrong-doing and nothing else will be done to look into the issues.
It is also hard to believe that this new code is something that the Justices have been using as a guideline this whole time, given Justice Elena Kagan’s acknowledgment in September that there were disagreements among the Justices concerning what ethics codes might cover. If this were the case, and there were active disagreements over the unwritten rules, there is no way the Court would have uniformity in their ethics procedures. There would also be no way all of the Justices would be adherening equally to any unspoken guidelines.
“It would help in our own compliance with the rules,” Kagan explained at a Notre Dame speech on the issue of the Court needing a formal ethics mandate. “And it would, I think, go far in persuading other people that we were adhering to the highest standards of conduct.” This last statement represents the crux of the real problem — the Supreme Court is only putting out this appearance of a new set of rules to placate a majority of US citizens that it neither agrees with, nor cares about.
Senator Sheldon Whitehouse (D-RI) has been one of the most vocal proponents of ethical reform for the highest court in the land and is still unsatisfied with the latest solution to impose regulations that are just for show. “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.”
The honor system has not worked for members of the Roberts Court,” Whitehouse said in a succinct statement about how ineffective these new rules will be. Senator Whitehouse had already proposed implementing a system within the Supreme Court that would allow for investigations into complaints by lower-court judges. The motion had cleared the Senate Judiciary Committee without any support from Republican Members, who maintain that this action by Democrats is merely a response to decisions they didn’t like from the conservative-dominated Court, including overturning the right to abortion.
The ethics bill proposed by Democrats would have required that Justices provide more detail about possible potential conflicts of interest, as well as written explanations about any decisions not to recuse. It would have also sought to illuminate any gifts or favors that were being received by Supreme Court Justices.
Although the Democratic bill had little to no chance of becoming law in the Republican-controlled House, or the Senate where Democrats maintain a very slim majority, the pushback was providing leverage to get the Court to finally do something substantial about ethics reform. Senate Judiciary Chair Dick Durban (D-IL) had scheduled a committee vote for Thursday to subpoena billionaire Harlan Crow and conservative activist Leonard Leo about their roles in organizing and paying for justices’ luxury travel.
There is little doubt that quashing the subpoena process was the reason behind this latest public adoption of ethics standards, which should leave us all wondering if the Supreme Court issued these rules to placate the public, or the billionaire benefactors who have seemingly bought a few conservative Court members. The people who face the most immediate risk are not the Justices, but those who would have to testify, under felony penalty of perjury, about their actions and intentions.
This latest acquiescence by the Supreme Court in creating new standards is now the second round of attempting to dispel public outrage over the unethical behavior of Conservative Justices. In April, Chief Justice Roberts refused a request from the Senate Judiciary Committee to testify at a hearing on US Supreme Court ethical standards. Roberts chose to issue a thin statement concerning the ethical obligations of the Court, which was also a massive failure with assuaging public discontent.
Public approval and trust of the United States Supreme Court remains at record lows, according to a Gallup Poll released just before the Court’s new term began on Oct. 2, 2023. Only 41% of adults in the United States currently approve of how the Supreme Court is handling its job. The Court’s approval rating first fell to the record-low 40% in September 2021, after it declined to block a controversial Texas abortion law, which was the precursor to the decision that overturned Roe v. Wade. Republicans may actually be right about one thing — the public distrust in the Supreme Court goes beyond deceptive ethics practices, and includes distrust over a ruling that they believe to be inherently partisan and wrong.
Amee Vanderpool writes the SHERO Newsletter, is an attorney, published author, contributor to newspapers and magazines, and an analyst for BBC radio. She can be reached at avanderpool@gmail.com or follow her on Twitter @girlsreallyrule.
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I don't even know if I would call this a "failure". That gives it an aura of legitimacy that it doesn't deserve. This was essentially the Supreme Court thumbing its nose at its critics, IMHO.
not-so-subtle reminder that SCOTUS is illegitimate