Would a code of ethics fix the Supreme Court? Some raise concerns about enforceability

WASHINGTON – A series of Supreme Court ethics scandals that started with luxury trips gifted to Justice Clarence Thomas has renewed focus on the idea of a code of conduct for the nine most powerful jurists in the nation.

But what if a code of conduct isn’t enough?

A series of bills that would require the high court to adopt a code of conduct is reopening a debate over how such guidelines might be enforced, who would do the enforcing and whether an ethics code would have actually headed off the steady stream of controversies over travel, property sales and a lack of disclosure.

Start the day smarter. Get all the news you need in your inbox each morning.

“Once such a code exists, there is no simple way for it to become ‘binding’ or ‘self-enforcing,'” said Josh Blackman, a law professor at South Texas College of Law Houston. “Each justice would still have to make their own judgment calls.”

Fishermen: How a group of herring fishermen may get the Supreme Court to reel in government power

Alito: Justice Samuel Alito claims stunning leak of opinion overturning Roe came from draft’s critics

That debate is likely to come up Tuesday as the Senate Judiciary Committee holds a hearing on Supreme Court ethics amid calls from its chairman, Sen. Dick Durbin, D-Ill., to take some action in response to the scandals.

How would a code of ethics work for the Supreme Court?

• Legislation introduced last week by Sens. Angus King, I-Maine, and Lisa Murkowski, R-Alaska, would require the Supreme Court to create a code for itself and publish that document on its website. It would also require the court to designate someone − the bill doesn’t specify who − to “process complaints” about alleged violations and publish an annual report describing the complaints and whether any action was taken to address them.
• But the proposal carries no penalties for violations and would likely give the justices considerable leeway to interpret its requirements. “Transparency is the enforcement mechanism,” King told reporters last week. “We’re not talking about sanctions or any kind of penalties. But what we’re saying is, establish the standards, and there will be transparency in terms of any charges of violations of those standards.”
• In a statement to Senate Democrats last week, Chief Justice John Roberts appeared to question the enforceability of the code followed by other federal judges, asserting its demands are “broadly worded principles that inform ethical conduct” but “are not themselves rules.” Its canons, he wrote, are “far too general” to be rules. 

Supporters say a code of conduct would be a big improvement

The code of conduct for lower federal courts requires judges to “avoid all impropriety and appearance of impropriety” and bars them from using their “judicial position or title to gain advantage in litigation involving a friend or a member of the judge’s family.” While that language is vague, supporters say it’s better than nothing −  which is what the Supreme Court has in place currently.

“The Supreme Court remains the most powerful, least accountable institution in Washington,” said Gabe Roth, executive director of Fix the Court, a nonpartisan judicial watchdog.

Roth acknowledges a code of ethics, on its own, isn’t a panacea. But, he said, a code coupled with a designated ethics point person would be an improvement. Roth would also like to see justices required to get approval from an ethics body before accepting a trip or gift worth more than $250 and more detailed disclosures about trips.

Ethics: Chief Justice John Roberts declines to testify on ethics, Clarence Thomas revelations

Congress: Durbin asks Chief Justice John Roberts to testify about Supreme Court ethics after Thomas revelations

“The one thing we know for certain is that more people are paying attention to the conflicts at the Supreme Court, both real and perceived, than ever before, and it’s better to disclose information than to be caught trying to hide something,” Roth said.

Charles Gardner Geyh, an Indiana University law professor, said he agrees with some of the concerns raised about enforcing a code of ethics − that a disciplinary process might devolve into political theater. But Geyh pushed back on criticism from some that a code of conduct, without specific enforcement, would be meaningless.

“The Constitution requires Supreme Court justices to swear an oath,” Geyh said. “That oath is not meaningless, just because there is no formal enforcement mechanism….The same is true of a code of conduct: When a group of judges get together and buy into a code of ethical conduct that they discuss, internalize, and revisit on a regular basis, it creates a code culture that influences the way judges think about their work.”

Supreme Court Justice Clarence Thomas on Sept. 16, 2021.

Supreme Court plays defense as ethical questions mount

The number of stories raising questions about ethics at the high court have increased significantly in recent weeks. Here’s a rundown on some of the cases that have drawn the most attention.

• The latest round of scrutiny on the Supreme Court started with a series of stories in ProPublica last month, including one that offered new revelations on private jet trips and luxury yacht travel Thomas accepted from Harlan Crow. The GOP megadonor also purchased three properties from Thomas and his family – none of which were reported on the justice’s annual disclosure forms. Thomas acknowledged the trips, describing the Crows as “among our dearest friends” and said he was “advised that this sort of personal hospitality from close personal friends, who did not have business before the court, was not reportable.”
• Justice Neil Gorsuch, meanwhile, was the subject of a report in Politico that he sold a vacation property he owned in Colorado with two partners to the chief executive of a law firm, Greenberg Traurig, that has represented clients before the Supreme Court. Greenberg’s Brian Duffy told Politico that he’d never spoken to Gorsuch.
• A New York Times report Sunday suggested George Mason University law school developed an “unusually expansive relationship” with several of the Supreme Court’s conservative justices in order to “accelerate its already meteoric rise to the top rank of law schools in the United States,” according to emails obtained by the newspaper. That amounted to bringing the justices in as lecturers and guests at school events and then marketing those relationships to potential students and donors.  

This article originally appeared on USA TODAY: Would a code of ethics fix the Supreme Court? Some raise concerns about enforceability