Even though there has been intense internal debate on the need for a written ethics code, the Supreme Court has openly opposed its implementation for years. Therefore, it was unexpected when the court on Monday adopted an official code.
The code, which is signed by all nine justices and is spread across five eight-page “canons,” is written in laborious legal prose. Chief Justice John Roberts, who defended the court’s lack of a binding code twelve years ago, is likely the architect of this compromise, having been shaken no doubt by the court’s growing crisis of public confidence and Congress’ increasing attempts at oversight.
No significant breakthroughs
Even though the court has officially approved an ethics code for the first time in its history, the code doesn’t represent any significant advancements and isn’t expected to start the radical shift in the court’s operations that reform-minded supporters have campaigned for.
The idea of enacting a code has been privately discussed at the court for years, but the justices have never been able to agree on it. The court itself appeared to recognize in its opening statement that the “new” code, which was unveiled on Monday, is just a repackaging of the court’s earlier ethical pronouncements, including one that was issued in April just as Roberts was pleading not to testify before a Senate committee.
Furthermore, the court’s pronouncement from April was simply a rehashing of many announcements and remarks it has made to the media over several decades regarding ethical issues.
Dissatisfaction on all sides
On Monday, several criticized the action as insufficient and inefficient, citing the absence of any enforcement mechanism. It also disappoints conservative pundits who thought establishing any code at all would be foolish to appease ill-intentioned opponents of the court’s most conservative judges.
According to Jeff Hauser, executive director of the Revolving Door Project, which examines the relationship between corporate America and the federal government, “this unenforceable public relations document serves absolutely no purpose other than to permit the media to revert to pretending that our unaccountable and unethical Supreme Court retains legitimacy.”
“The Supreme Court’s understanding of its distinct constitutional duty is demonstrated by the code,” according to David Rivkin, a former attorney general and White House staffer for Presidents Ronald Reagan and George H.W. Bush. “Whether the merits of the court’s position will be sufficiently acknowledged to lessen the vitriolic attacks on the court is still to be seen.”
Unnecessarily difficult for spouses
The new policy is ambiguous regarding whether a justice should disqualify themselves from a case due to their spouse’s political or personal involvement, maybe out of respect for Thomas and his wife, Virginia. Moreover, it says nothing about how much investigation a justice should conduct to uncover such possible conflicts.
In the aftermath of the Capitol riot on January 6, 2021, Virginia Thomas’s husband received unwanted attention due to her longstanding involvement as a conservative political activist and organizer. Ginni Thomas was in contact with the White House in the weeks following the 2020 election, promoting fringe conspiracy theories about foreign meddling in the vote, according to evidence uncovered during the House investigation into that incident and the larger attempt to overturn the results of the presidential election.
The policy states that “a justice should make a reasonable effort to keep informed about the personal financial interests of the justice’s spouse and minor children residing in the justice’s household,” but it doesn’t address whether a justice has an obligation to know enough about his or her spouse’s personal or political activities to prevent those from creating a conflict of interest or the appearance of one. The new code states that justices should step aside in most cases when a spouse or minor child has a financial or “any other interest that could be substantially affected by the outcome of the proceeding.”
Lenient prohibition on leaks
Although it is worded in a way that makes it possible to interpret it as not placing many restrictions on what court members say to the media or to acquaintances, another section appears to forbid justices from disclosing information concerning official issues.
According to the code, “A Justice should not knowingly make public comment on the merits of a matter pending or impending in any court.” “A Justice shall not, for any purpose unrelated to the Justice’s official duties, disclose or use nonpublic information obtained in a judicial capacity.”
Regarding what may be considered a public remark, the boundaries appear to be somewhat ambiguous. The justices’ tradition of keeping their opinions to themselves is not mentioned in the law.
Small security concerns
The court, which has witnessed an increase in threats and even an attempted assassination on Justice Brett Kavanaugh’s life, mentioned the justices’ “distinctive security concerns” in the commentary that accompanied the ethics rule.
In light of those concerns, the opinion states that those who work for the government can do security-related tasks and offer “legal, ethical, and other appropriate assistance to the Justices.”
