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SCOTUS' New Ethics Code: Not Really New, Not Really a Code. But It's Something.

By Joseph Fawbush, Esq. | Last updated on

The Supreme Court has been considering some sort of official ethical code of conduct since at least 2019, when Justice Elena Kagan revealed at a Congressional subcommittee hearing that Chief Justice John Roberts was contemplating the idea. Four years later, that code of conduct has finally appeared, announced without much warning on Monday, November 13.

The impetus for all nine justices to agree to an ethical code has intensified recently after ProPublica revealed extensive undisclosed gifts to Justice Clarence Thomas from Republican donors. Others have questioned book and property sales by Justices Sonia Sotomayor and Neil Gorsuch, respectively. Senator Dick Durbin (D-Ill), the Chairman of the Senate Judiciary Committee, recently asked the Chief Justice to testify on ethical reforms. Justice Roberts declined to appear before the Judiciary Committee but has apparently taken calls for the Supreme Court to adopt ethical standards to heart.

Why Did It Take So Long?

As has been widely reported, the Supreme Court is the only federal court for which there had previously not been an ethical code of conduct. However, there are reasons for this that have nothing to do with whether justices are currently behaving unethically:

  • There are only nine members of SCOTUS, so if a judge recuses there could be a 4-4 tie, confusing the law.
  • Supreme Court justices cannot be replaced, as they can in appellate and district courts.
  • Ethical violations are harder to enforce at the Supreme Court. For example, it's not clear whether Congress could impose ethical standards on SCOTUS even if they wanted to. Justice Samuel Alito has very publicly said they cannot.

There is also debate over whether the Supreme Court is really suffering from an outburst of ethical lapses, or if it is more a matter of public perception. For example, David Lat wrote recently in The Atlantic about how Justice William J. Brennan accepted $140,000 in gifts and forgiven debt from a wealthy businessman in the 1990s. Despite being reported, it generated little public attention.

From the perspective of the justices, there may have been some reluctance to enact any sort of policy with teeth to avoid forced recusals in important cases. But the delay in enacting an ethical code has generated its own negative attention.

What's In the Code?

Nothing surprising. It is a relatively straightforward copy of the code of conduct for other federal judges, with minimal exceptions. It sets the standards for recusal, limits where justices should receive outside income, and discusses appropriate extrajudicial activities. The notable caveat, as already mentioned, is enforcement. Parties to a case that believe a lower-court judge acted unethically can file a complaint that is usually reviewed by the chief judge of the circuit where the complaint is filed. For the Supreme Court, every justice is still responsible for determining whether their own actions are ethical.

Still, while the code itself may not contain groundbreaking provisions, its mere existence signals a recognition of the need for ethical guidelines in a branch of government where none existed before. While the code's introduction may be in part due to political pressure, it is clear the justices recognize the need for the Supreme Court to be seen as an ethical, neutral body. 

Does Anything Change?

The path to this ethical code has been a prolonged one, prompting questions about the delay and the unique considerations of the Supreme Court. The challenges arising from its small membership, irreplaceable justices, and the court's autonomy in deciding ethical matters have contributed to the time it took to establish such standards.

Despite its toothlessness, the introduction of the code from existing federal judicial standards is a positive development for many. Of course, critics remain, many of whom feel the justices did not go far enough. As the legal community and the public scrutinize this new ethical framework, its effectiveness and the court's commitment to upholding its principles will undoubtedly be subjects of ongoing discussion and evaluation.

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