On November 13, the Supreme Court surprised many by issuing a code of conduct. We have long called for a code that would address the unique issues that arise from service on the nation’s highest court —after all, these are the nine most powerful judges in the country, so it’s only fair they be held to the highest standards of conduct. We’ve been advocating for a code that would define unethical conduct and explain its consequences.
Instead, the court has offered a code that seeks to legitimize unethical conduct.
We doubt it’s a coincidence that the court released its code just as the Senate Judiciary Committee was preparing to subpoena Leonard Leo and Harlan Crow, who have lavished gifts on several justices, for records about their role in some of the court’s current ethics scandals. But since the court’s code is far from adequate, it’s essential Congress keep up its efforts to strengthen the court’s ethics framework.
Here are the most problematic elements — and some thoughts on the path not taken.
1. “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.”
This passage, from the introduction to the Code of Conduct, makes it clear that the justices still don’t understand the ethics problems facing the court, or how those problems are damaging the public’s trust in them. The issue is not that people don’t understand all that the court does to uphold ethics standards; it is that for years, many of the justices have acted in ways that actively undermine the public’s confidence in their impartiality. The public has watched as justices accepted lavish gifts from wealthy activists, made inflammatory remarks about political figures, decided not to recuse from cases despite conflicts of interest, and appeared before groups seeking to influence the court’s jurisprudence. Unfortunately, rather than making efforts to rein in the problematic behavior, the code that follows this introduction endorses it. It represents a colossal missed opportunity.
2. “A Justice should comply with the restrictions on acceptance of gifts and the prohibition on solicitation of gifts set forth in the Judicial Conference Regulations on Gifts now in effect.”
The assumption underlying this provision is pretty galling: It’s not only that accepting yacht travel, trips on private jets, and stays at corporate luxury accommodations is completely fine, but that the public had no right to know about these gifts until the judicial conference “clarified” its guidance earlier this year. This is preposterous. These lavish gifts and travel should have been reported under the Ethics in Government Act of 1978 (we explained why when we asked the Justice Department to investigate and possibly fine Justice Clarence Thomas for what appears to be a rather clear-cut case of violating federal law). The new code does little more than excuse past (very bad) behavior, while failing to meaningfully rein in the seemingly endless billionaire gift-giving to justices. A low-level executive branch employee would be facing an investigation for the kind of behavior we have seen from justices on the highest court in the land. This code only embraces this absurd imbalance.
3. “For some time, all Justices have agreed to comply with the statute governing financial disclosure, and the undersigned Members of the Court each individually reaffirm that commitment.”
The code of conduct for other federal judges requires them to comply with the financial disclosure law, and for good reason: The law is mandatory for judges, including Supreme Court justices. But the justices’ new code makes it seem like their financial disclosures are simply an act of goodwill — an “affirmed commitment,” not a statutorily mandated practice. Chief Justice John Roberts has been hinting since 2011 that he doesn’t think Congress has the power to require the justices to publish financial disclosures, and this framing seems calculated to make the justices look committed to transparency while subtly furthering the notion that they are above the law.
Not for nothing, but the justices have a decidedly mixed record when it comes to actually complying with the financial disclosure rules. It’s quite common for justices to have to revise their disclosures to include unreported items, and recent reporting indicates that Justice Thomas still may not have reported complete information about a forgiven loan he used to purchase a luxury bus.
“It’s quite common for justices to have to revise their disclosures to include unreported items, and recent reporting indicates that Justice Thomas still may not have reported complete information about a forgiven loan he used to purchase a luxury bus.”
4. A justice should disqualify from a case “where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”
This line is amazing. The justices have actually written a standard for themselves here that is lower than the one that already applies to them through federal law, which requires the justices to disqualify themselves from cases where their “impartiality might reasonably be questioned.” While the new language may appear, at first blush, to mirror the general recusal standard for lower courts, the Supreme Court’s framing could actually provide ample cover for a justice to hear a case that they should be disqualified from by claiming that any critics are simply biased against them.
Meanwhile the code does not address the justices’ own biases as they will continue to be judges in their own recusal decision-making — something we’ve repeatedly pointed out needs to change.
5. “A Justice should not speak at or otherwise participate in an event that promotes a commercial product or service, except that a Justice may attend and speak at an event where the Justice’s books are available for purchase. …
“A Justice should not to any substantial degree use judicial chambers, resources, or staff to engage in activities that do not materially support official functions or other activities permitted under these Canons.”
Multiple justices have signed massive book deals after being confirmed to the Supreme Court — deals don’t count toward the cap on their outside income. But the judiciary’s hands-off approach to book revenue is out of line with how some other parts of the government, such as the House of Representatives, regulate similar deals. Making a rule that preserves your unfettered ability to cash in on book deals is not necessarily the best way to signal a seriousness about ethics.
The Code of Conduct says the latter part of the provision, about staff and resources, is to explicitly permit the justices to have security details with them when they travel. We wholeheartedly support that. But because of the way the code is written, this also means the justices can use their official resources — and their law clerks — to research, review, and even sell their books. There aren’t many circumstances where an employer would endorse the use of company resources to run their side hustle, but that’s what this amounts to.
6. “Except in unusual circumstances, no [appearance of impropriety] will be created when a Justice speaks to a group of students or any other group associated with an educational institution, a bar group, a religious group, or a non-partisan scholarly or cultural group.”
Some have already referred to this as the “Fed Soc” carve out; in short, it decrees that there is no problem with justices continuing to appear before controversial, ideologically oriented organizations, organizations where they have made problematic and disparaging remarks in the past. The code also does not address the problem of closed-door speeches given to such groups, where the justices’ remarks are not open to the public or the media. The court’s breezy declaration that this kind of conduct won’t “create an appearance of impropriety” does little to quell the public’s justified outrage. For their part, Justices Roberts and Kagan have tended to avoid appearing at these kinds of events, and the court would have done well to codify their more cautious approach.
The Code also permits the justices to let organizations use their names, positions, and judicial designation in fundraising materials "if comparable information and designations are listed for others.” This provision ignores the unique position and power that the Nine hold in our society. The justices should be prohibited from participating in fundraising. Full stop. Whether it’s for the Koch network, the American Bar Association, or a tiny nonprofit, Supreme Court justices simply should not lend the prestige of their offices to fundraising, especially given the current lack of transparency about whether and how funds raised flow into agenda-setting before the court.
“The justices should be prohibited from participating in fundraising. Full stop.”
7. “The rule of necessity may override the rule of disqualification.”
The rule of disqualification says that a judge must sit out a case if they are not, or appear not to be, impartial and unbiased. The rule of necessity says that if there is absolutely no other judge to hear a case, an otherwise disqualified judge can participate. At least, that’s what “necessity” means to most judges. But because the Supreme Court has a rather high opinion of itself, it has twisted the rule of necessity to mean it’s more important for a potentially disqualified justice to stay on a case rather than have only eight justices participate. They’ve applied the rule of necessity this way even though history reveals that an even number of justices would not necessarily bring the court to an impasse: The court has functioned for months, even years, with a vacant seat. We’d be happy to have our reading of this sentence proven wrong, but this seems like a way of saying the justices don’t have to recuse unless they feel like it.
8. “Canon 3B addresses the inherently judicial function of recusal” (emphasis added).
This one is subtle, but it could be a sign that the justices are out to stymie Congress’s efforts to pass judicial ethics laws. Congress has a fair amount of authority over the mechanics and logistics of the Supreme Court: It sets the number of justices and the day the court’s term begins, lays out some basic disclosure rules, and even controls the amount of discretion the court has over all but a few elements of its docket. But the Constitution does not grant Congress judicial power, so Congress cannot, for instance, control how a justice rules in any given case. As Congress has dedicated more time in the last several years to strengthening the court’s ethics rules, some (including Justice Samuel Alito) have claimed that ethics laws impermissibly encroach on the court’s judicial powers. Against that backdrop, this line is particularly concerning. Congress has set recusal rules through statute for nearly a century, but it seems the justices may be laying the groundwork for weakening those efforts.
9. “The Justices follow the same general principles and statutory standards for recusal as other federal judges, including in the evaluation of motions to recuse made by parties. But the application of those principles can differ due to the effect on the Court’s processes and the administration of justice in the event that one or more Members must withdraw from a case.”
In other words, “we follow the same rules as other justices, but because we are unique, we will actually bend the rules for ourselves.” Consider the path not taken: The justices could have recognized that they are the most powerful and visible jurists in the country, and because they feel it is important for all nine of them to participate in each case they rule on, they would go above and beyond to ensure their behavior is beyond reproach and conflicts would arise in only the rarest of circumstances. That would have made the court a model for ethics. But instead, the code of conduct lowers the bar, so the justices can step over it without breaking their strides.
10. “A Justice should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.”
This one is perplexing: Why does the code limit membership in only some discriminatory organizations? The Equal Employment Opportunity Commission, for instance, protects Americans from employment discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age, disability, and genetic information. The justices should not be allowed to join discriminatory organizations, nor should they appear before them. After all, these are the judges responsible for ensuring equal justice for all, and use of the facilities or benefits of such entities can be viewed by the public as endorsement of such discrimination. This is an area where the code of conduct for other federal judges needs to be updated as well, and the Supreme Court should have led the effort rather than simply adopting existing, inadequate language.
There are some glaring omissions from the justices’ new code, too. It doesn’t call for publication of recusal decision-making, which could go a long way to creating more consistent and appropriate decisions to sit out a case. Nor does it suggest that recusals ought to be decided by someone other than the justice whose impartiality is in question. Given what we now know about sources of spousal income at the court and the serious ways in which that could present a conflict of interest, the court could have also included more robust reporting requirements on spousal income and, if relevant, clients. And, as many have already pointed out, the court fails to address a single way in which this “binding” code might be enforced.
This is a missed opportunity of massive proportions. It appears conspicuously well-timed to throw off what was becoming a very serious Senate investigation into corruption at the Supreme Court. Far from proving that the court has its house in order, this disappointing code of conduct should spur everyone who cares about an ethical Supreme Court to redouble their efforts.
David Janovsky Sarah Turberville