'Giant loophole': The emperor still has no clothes when it comes to ethics at the US Supreme Court

fter years of public complaints, the United States Supreme Court finally promulgated a code of ethics on November 13. But sadly, the new code will do little to rescue the court from the crisis of legitimacy that has dogged it since it handed the presidency to George W. Bush in 2000 with its transparently partisan decision in Bush v. Gore. In fact, it may only deepen the crisis. In the words ofVox legal correspondent Ian Milheiser, the new code “is literally worse than nothing.”

This article originally appeared at The Progressive.

In addition to publishing the code itself, the court released a one-paragraph introduction explaining its reasons for adopting an ethics policy for the first time in its history. The introduction reads like a clumsily drafted political press release aimed at cover-your-ass damage control rather than a document designed to resolve real concerns about the lack of accountability for the third branch of government.

“The undersigned Justices are promulgating this Code of Conduct to set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the Members of the Court,” the introduction begins. “The Court has long had the equivalent of common law ethics rules . . . . 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.”

It’s impossible to know with certainty whether such remarks are the product of the court’s ivory-tower isolation from the rest of society, or if they are a product of deliberate gaslighting. In any event, the Court’s critics have not been laboring under a misunderstanding about the absence of ethical constraints on the nine elite lawyers who preside over the nation’s most powerful judicial body and have the last word on issues affecting nearly every aspect of our lives.

There has been no misunderstanding on the part of the public about the corruption of Clarence Thomas. He has refused to recuse himself from cases involving his insurrectionist wife, Ginni, and failed to disclose years-worth of lavish gifts received from Republican donors like Texas real estate magnate Harlan Crow, as required by the Ethics in Government Act. Nor has there been any misunderstanding about Samuel Alito’s failure to disclose the exclusive fishing trip he took to Alaska in 2008, paid for by GOP billionaire Paul Singer. Both justices are self-described “strict constructionists” who would never excuse similar lapses and derelictions if committed by litigants in cases before them.

The new code is fourteen pages long, including a five-page “commentary” attached as an appendix. In terms of substance, it is no less self-serving than the introduction.

The code is divided into five parts, or “canons,” that declare the justices should uphold the integrity and independence of the judicial; avoid the appearance of impropriety; perform their duties impartially, make all required financial disclosures, and disqualify themselves from hearing cases involving conflicts of interest; limit their engagement in extrajudicial activities to those that are consistent with their judicial offices; and refrain from overtly partisan political activity.

In style and format, the code is modeled after the code of conduct that has been in place for lower-court federal judges since 1973. But there are major differences between these codes that render the SCOTUS version toothless.

One glaring disparity is that the new code imposes no mandatory obligations on the members of the high court. Compliance by the justices of the Supreme Court is entirely voluntary, and there is no enforcement mechanism in place. Each individual justice will get to decide how to comply with the code’s strictures, or whether to comply at all. The net result is that the code will leave the justices exactly where they have been—above the laws and the Constitution that they oversee.

The new code is especially weak on judicial disqualification. The lower-court code of ethics stipulates that “A judge shall [emphasis added] disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”

By contrast, the new Supreme Court code’s disqualification cannon opens with the preface: “A Justice is presumed impartial [emphasis added] and has an obligation to sit unless disqualified”—that does not appear in the lower-court code. The Supreme Court version goes on to provide that “A Justice should [emphasis added] disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned.”

The differences are not a matter of semantics. The lower-court code uses mandatory language; the Supreme Court version does not.

The Supreme Court code also includes a giant loophole, which instructs that “the ‘rule of necessity’ may override the rule of disqualification.” The commentary following the code explains that because there are only nine justices, it is vitally important to ensure that the entire bench participates in the court’s deliberations. But here again, the court’s reasoning is suspect. While it is true that a full complement is desirable, the court operated with just eight members between the death of Antonin Scalia in February 2016 and the confirmation of Neil Gorsuch in April 2017. There is no reason for a strict rule of necessity.

Unlike Supreme Court justices, lower-court judges are also subject to a public-complaint process that can result in discipline by the Judicial Conference of the United States, the administrative arm of the federal courts. The Conference has the power to censure offending judges, request resignations and recommend impeachment proceedings.

Supreme Court justices are exempt from this process. Some eighty-three ethics complaints were filed against Brett Kavanaugh during his raucous 2018 Senate confirmation hearing, highlighted by the allegation that he had sexually assaulted Christine Blasey Ford. The complaints were summarily dismissed after Kavanaugh was confirmed to the high court.

The Supreme Court is also effectively insulated against recusal motions brought by litigants. When a recusal motion filed against a lower-court judge is denied, appeals can be taken to higher courts. Historically, justices of the Supreme Court have recused themselves on a case-by-case basis, but there is no appeal from their recusal decisions because the Supreme Court is a tribunal of last resort.

Despite the obstacles, however, there are ways to fix the Supreme Court’s ethics problems. One set of solutions is contained in the Supreme Court Ethics, Recusal and Transparency Act sponsored by Rhode Island Democratic Senator Sheldon Whitehouse and other Democrats. The act would establish a randomly selected panel of federal appellate judges to investigate complaints against Supreme Court justices. Another proposal, promoted by Glen Fine, a former Department of Justice Inspector General, would be to establish a permanent inspector general for the court.

Both proposals make sense. All that is lacking is the political will to implement them.