The new Supreme Court ethics code released on Monday looks good on paper, experts in legal ethics said. But only on paper.
Its lack of an enforcement mechanism means that it will operate on the honor system, with individual justices deciding for themselves whether their conduct complies with the code. That makes it a parchment promise, some experts said, without transparent procedures for assessing whether it has been violated or consequences when it has.
“The primary problem is how to give these rules teeth, especially in light of the fact that there have been repeated violations of these very rules,” said Amanda Frost, a law professor at the University of Virginia.
Among those violations, she said, citing news reports, were participation in fund-raising events and the failure to disclose gifts by Justice Clarence Thomas and the use of Supreme Court staff members to help sell books by Justice Sonia Sotomayor.
At the heart of much of the debate over the new ethics code is which conflicts require recusal and whether justices should decide those questions for themselves. Justice Thomas, for instance, took part in cases on the 2020 election and its aftermath, even though Virginia Thomas, his wife, had participated in efforts to overturn the results.
The new code does not say what can be done to address situations like that, said Renee Knake Jefferson, a law professor at the University of Houston.
“There is no official process for an individual to file a complaint,” she said. “There is not really even any clear way that we can see how the justices will enforce it among themselves.”
Judges on lower federal courts are subject to the Judicial Conduct and Disability Act, a federal law that allows people to file ethics complaints and sets out a mechanism for their review. The penalties include public censures and reprimands. It does not apply to Supreme Court justices.
There was a grudging quality to an introductory statement that preceded the new code, one that all but conceded that it was for show.
The justices had long voluntarily complied with the ethics rules that apply to other federal judges, it said.
“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,” the statement said. “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.”
After setting out the code itself, the court issued commentary that indicated that it was not inclined to change its ways. It cited a statement from Justice Tom C. Clark in 1969 that judges “must bear the primary responsibility” for appropriate judicial behavior. The court added, “The same is true for justices.”
The document included a declarative sentence that disappointed many experts in legal ethics: “Individual justices, rather than the court, decide recusal issues.”
Not only that: The justices, even as they make their own determinations, seem to feel no obligation to give reasons. They only rarely explain themselves when they disqualify themselves from cases — or when they fail to do so.
To be sure, the commentary also adopted business-school jargon to suggest that it was still studying questions like enforcement. “To assist the justices in complying with these canons,” it said, “the chief justice has directed court officers to undertake an examination of best practices, drawing in part on the experience of other federal and state courts.”
Those “best practices” may include how motions seeking the recusal of justices are treated in some state supreme courts. They are referred to the full court, meaning that justices on state courts sit in judgment of their colleagues. That may be awkward and could give rise to strategic behavior and gamesmanship.
But it may be preferable to letting justices violate the adage that no person should be a judge in his or her own case.
In 2011, in his last major statement on the justices’ ethics, Chief Justice John G. Roberts Jr. wrote that the justices could be trusted to make the right calls.
“I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” he wrote. “They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”
Recusal decisions by lower-court judges are subject to judicial review, Chief Justice Roberts added. That is not true at the Supreme Court.
“There is only one major difference in the recusal process: There is no higher court to review a justice’s decision not to recuse in a particular case,” he wrote. “This is a consequence of the Constitution’s command that there be only ‘one Supreme Court.’”
Letting other justices second-guess their colleagues’ recusal decisions could turn ugly, Chief Justice Roberts wrote.
“Indeed, if the Supreme Court reviewed those decisions, it would create an undesirable situation in which the court could affect the outcome of a case by selecting who among its members may participate,” he wrote.
The new code, which did not affect that dynamic, solved nothing, said Gabe Roth, the executive director of Fix the Court, an advocacy group that seeks more openness at the Supreme Court.
“If the nine are going to release an ethics code with no enforcement mechanism and remain the only police of the nine, then how can the public trust they’re going to do anything more than simply cover for one another, ethics be damned?” he asked.
Part of the rationale for issuing the new code, legal experts said, was to avoid congressional action. But James Sample, a law professor at Hofstra University, said lawmakers should not hesitate to supply the missing mechanism.
“If we waited for the Supreme Court to voluntarily cede ethics enforcement power to others, we would have better odds waiting for Godot,” he said. “Congress can and should pursue meaningful mechanisms to enforce the code.”
