The Supreme Court’s new ethics code is toothless, experts say
The new Supreme Court Code of Ethics released Monday looks good on paper, legal ethics experts say. But only on paper.
The lack of an enforcement mechanism means it will operate on an honor system basis, with individual judges deciding for themselves whether their conduct complies with the code. That makes it a parchment promise, some experts said, without transparent procedures for assessing whether the law has been violated and what consequences there are if it is.
“The main problem is how to give these rules teeth, especially in light of the fact that there have been repeated violations of these rules,” he said. Amanda Frostprofessor of law at the University of Virginia.
Among these violations, she said, citing news reports, were participation in fundraising events and the failure to disclose gifts by Judge Clarence Thomas and the use of Supreme Court staff to help sell books by Judge Sonia Sotomayor.
At the heart of much of the debate over the new ethics code is which conflicts should be dismissed and whether judges should decide these questions themselves. For example, Judge Thomas participated in cases involving the 2020 election and its aftermath even though Virginia Thomas, his wife, had participated in efforts to overturn the results.
The new code does not say what can be done to address such situations Renée Knake Jeffersonprofessor of law at the University of Houston.
“There is no official procedure for filing a complaint,” she says. “There isn’t even a clear way for us to see how the judges will enforce this among themselves.”
Judges of lower federal courts are subject to the Judicial Conduct and Disability Act, a federal law that allows people to file ethics complaints and provides a mechanism for adjudicating them. The include fines public censures and reprimands. It does not apply to Supreme Court justices.
There was something grudging in an introductory statement that preceded the new code, a statement that all but admitted it was for show.
The judges have long voluntarily adhered to the ethics rules that apply to other federal judges, the report said.
“However, the lack of a code has led in recent years to the misunderstanding that the judges of this court, unlike all other lawyers in this country, regard themselves as unconstrained by any ethical rules,” the statement said. “To dispel this misunderstanding, we are issuing this code, which largely represents a codification of principles that we have long recognized as guiding our conduct.”
After laying out the code itself, the court issued comments showing that it was not inclined to change its behavior. It cited a 1969 statement by Judge Tom C. Clark that judges “must bear primary responsibility” for appropriate judicial conduct. The court added: “The same applies to judges.”
The document contained a declarative sentence that disappointed many legal ethics experts: “Individual judges, rather than the court, decide denial issues.”
Not only that, even when making their own decisions, the judges seem to feel no obligation to give reasons. They rarely explain themselves when they disqualify themselves from business – or when they don’t.
To be fair, the commentary also used business jargon to suggest it was still studying issues of enforcement. “To assist judges in complying with these canons,” the report said, “the Chief Justice has directed court officials to conduct a study of best practices, building in part on the experience of other federal and state courts.”
These “best practices” could include how motions seeking judicial recusal are handled in some state supreme courts. They are referred to the full court, which means state court judges judge their colleagues. That can be difficult and can lead to strategic behavior and gaming skills.
But it may be preferable to letting judges violate the adage that no one should be a judge in his or her own case.
In 2011, in his last important statement On the justices’ ethics, Chief Justice John G. Roberts Jr. wrote. that the judges could be trusted to make the right decisions.
“I have full confidence in my colleagues’ ability to determine when denial is warranted,” he wrote. “They are lawyers of exceptional integrity and experience whose character and suitability have been vetted through a rigorous nomination and confirmation process.”
Refusal decisions by lower court judges are subject to judicial review, Chief Justice Roberts added. This is not the case with the Supreme Court.
“There is only one major difference in the recusal process: There is no higher court that can review a judge’s decision not to reverse the recusal in a particular case,” he wrote. “This is a consequence of the Constitution’s command that there should be only ‘one Supreme Court’.”
If other justices second-guess their colleagues’ denial decisions, things could turn ugly, Chief Justice Roberts wrote.
“Indeed, if the Supreme Court were to review these decisions, it would create an undesirable situation in which the court could influence the outcome of a case by selecting which of its members may participate,” he wrote.
The new code, which did not affect that dynamic, solved nothing, he said Gabe Roththe executive director of Fix the Court, an advocacy group that strives for more openness at the Supreme Court.
“If the nine are going to issue a code of ethics with no enforcement mechanism and remain the only police of the nine, how can the public trust them to do more than just cover for each other, ethics be damned?” he asked.
Part of the reason for issuing the new code, legal experts said, was to avoid congressional action. But James Examplea law professor at Hofstra University, said lawmakers should not hesitate to provide the missing mechanism.
“If we waited for the Supreme Court to voluntarily cede the power to enforce ethics to others, we would have a better chance waiting for Godot,” he said. “Congress can and should pursue meaningful mechanisms to enforce the code.”