Photo via the Project On Government Oversight
On November 13th, 2023, the Supreme Court of the United States (SCOTUS) released its first-ever code of ethics. It was co-signed by all nine current justices on the Court, and includes a one-page explanation of why the code was created and needed. There have been reports from critics claiming that justices believed themselves to be “unrestricted by any ethics rules,” which the justices claim is false and merely a “misunderstanding.”
Democrats have been calling for a code of ethics for some time now. Recently, there has been a lack of public trust in the Court due to concern over financial transparency regarding gifts from millionaires such as Harlan Crow and Paul Singer. Most of the criticism has focused on Justice Clarence Thomas and his luxury gifts from Crow. While Justice Thomas had disclosed some of the transportation arrangements in the past, he claimed he did not know he had to reveal the rest. Justice Samuel Alito has also been scrutinized for accepting financial gifts from conservative millionaires.
There has also been unease around Virginia Thomas, Justice Thomas’ wife, as her recent involvement in political advocacy and activity has been raised as an ethics and security issue. Virginia Thomas was involved with the January 6th insurrection at the Capitol, which has negatively reflected on Justice Thomas’s reputation on the Court.
While the new code lays out rules for justices on the Supreme Court, it is often vague and leaves room for interpretation. For example, much of the code is dedicated to whether justices should recuse themselves from cases in certain situations. The code states that justices should recuse themselves “in a proceeding in which the justice’s impartiality might be reasonably questioned.” Justice Thomas did not recuse himself from previous cases his wife was involved in, which brought concerns to the forefront of many citizens’ minds. The code also covers financial transparency, political activity, and judicial integrity. Each of these topics is also relatively unspecific in their respective categories.
Additionally, there is a strong emphasis on the idea that justices should not take any political or other action that would disrupt or harm the integrity or independence of the Court. The code also says justices should “refrain from financial and business dealings that exploit the judicial position,” which seems to target Justices Clarence Thomas and Samuel Alito directly.
While Democrats have expressed support and approval for the code of ethics, many still acknowledge that it has its shortcomings. One of the most prominent advocates for a code of ethics for the SCOTUS is Democratic Senator Sheldon Whitehouse from Rhode Island, who is the chairman of the Senate Judiciary Courts Subcommittee and has introduced a bill in the Senate that would establish rules and ethics for the Supreme Court. He stated, “The honor system has not worked for members of the Roberts Court” in response to the need for the recent ethics code. Whitehouse’s bill in the Senate would allow for investigating accusations by lower court judges. Other Democratic Senators—such as Senator Dick Durbin and Senator Chuck Schumer—have also expressed support for the Code of Ethics. However, this support has been supplemented with the critique that some changes might be needed, such as stricter regulations and an enforcement method. Whitehouse also agrees that while this code was needed, it could have been more specific and included ways of enforcing measures.
Other groups and organizations have also gotten involved in the criticism. Left-leaning advocacy group Take Back the Court reported that “the Court’s new ‘code of ethics’ reads a lot more like a friendly suggestion than a binding, enforceable guideline.” Scholars such as Northwestern University legal ethics expert Steven Lubet have also said that the code of ethics, while a step in the right direction, will not do much for the Court.
Analysts have also reported that no enforcement mechanism is embedded in the code, meaning there will be no way for justices to be held accountable. This lack of an enforcement method is one of the biggest criticisms of the code. Without an enforcement method, the justices could, theoretically, ignore the Code entirely. Additionally, by design, the SCOTUS is supposed to be independent of political beliefs and influences, meaning constituents cannot vote justices out if they do not follow the Code.
The impact and effectiveness of the Code of Ethics is still being debated. Some legal scholars, like Indiana University legal ethics expert Charles Geyh, claim this will have no impact without a way for enforcement, while others hold out hope for change. It is now up to the justices of the Supreme Court to either follow the ethics code they have created for themselves or continue to build public distrust and uncertainty in the judicial branch of the United States government.
This article was edited by Sarah Davey.