On 13 November the United States Supreme Court adopted its first-ever official Code of Conduct. The code comes amid the discovery of a slew of recent ethical scandals surrounding various Justices and their family members. Earlier this year it came to light that many of the Justices have been involved in inappropriate “gifts” and transactions during their tenure as a Supreme Court Justice. Justice Thomas accepted several private jet trips, expensive vacations on yachts, payment for his relative’s private school tuition, and a house for his mother from Harlan Crow, a major Republican donor and real-estate developer. He also accepted VIP tickets to sporting events and parties from the Horatio Alger Association (a wealthy conservative group). Justice Alito received private jet flights and a luxury Alaskan fishing trip from the hedge-fund billionaire Paul Singer and later when Singer had a case that appeared before the Supreme Court, he failed to recuse himself. Justice Gorsuch sold a property he co-owned to a lawyer who was the head of a firm that had multiple cases before the Court. Justice Sotomayor’s staff purportedly “encouraged” libraries and schools to buy her books (she has made over $3.7 million from book sales). The above issues may have been seen as within the Supreme Court’s existing, but weak ethical code, except that they didn’t disclose any of them.
When asked to explain themselves all four of the Justices had little to no satisfactory explanation. Justices Thomas and Alito maintained that these men were their close personal friends, and the gifts a result of their friendship. At least in the case of Justice Alito that brings up the question of why he did not recuse himself when a case involving his friend came before the court. This prompted Charles Geyh, a leading expert on recusals to state, “If you were good friends, what were you doing ruling on his case? And if you weren’t good friends, what were you doing accepting this?” Justice Gorsuch did not explain why he didn’t disclose the purchaser’s name. And finally, in relation to Justice Sotomayor’s books, the Supreme Court released a statement saying that her team was merely trying to ensure that an appropriate number of books were available at her speaking engagements. None of these examples struck the American public as being particularly truthful or adequate and calls for accountability started being issued. However, despite public pressure, it was clear that unless the Supreme Court themselves wanted accountability, nothing would happen. Even as late as 9 November Senate Democrats were giving up on subpoenaing various people involved in the scandals due to pressure from their republican colleagues. And then five days later the Supreme Court released their own code of conduct.
The Code of Conduct, though a step in the right direction, fails to give respect to the valid and ever-growing concerns of the public. The statement that the Court released on the 13th, maintains that they have always had and followed an ethical code derived from various sources but that, “The absence of a [written] Code, however, has led in recent years to the misunderstanding that the Justices of this Court…regard themselves as unrestricted by any ethics rules. 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”. For many this signifies that nothing will change, especially considering that the code does not provide for an enforcement mechanism, without which the code has no real power. Additionally, the fact that the code was written and is being implemented by the very people it seeks to regulate casts doubt on it potential efficacy.
The code lays out basic ethical principles such as, that justices should not allow relationships to affect their official conduct or judgement, that there are restrictions on receiving gifts and participating in fundraising, that Justices should not use judicial staff or resources for non-official duties and that they should uphold the “integrity and independence of the Judiciary”. While all these rules are appropriate, and the least that should be expected of arbiters of justice, the commentary released with the statement indicates the potential purpose of the code. The commentary states that when deciding whether it would be appropriate to take a speaking engagement Justices should, "consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public". This signifies that possibly the true purpose of the code is not to demand ethical behavior from those who hold the distinguished position of a Supreme Court Justice but rather to placate the American people as faith in the Supreme Court dwindles.
Click Here for the Supreme Court Statement and the New Code of Conduct https://www.supremecourt.gov/about/Code-of-Conduct-for-Justices_November_13_2023.pdf