The New Supreme Court Ethics Code Needs More To Be Effective

Civil Rights Policy Brief #214 | By: Rodney A. Maggay | November 20, 2023

Photo taken from: forbes.com

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Policy Summary:

On November 13, 2023 the Supreme Court announced that for the first time in its history the Court’s justices would be bound by an ethical code.

While the Supreme Court has never had a binding ethical code for the more than two hundred years of its existence, judges on the lower federal appeals and federal district courts have had to abide by an ethical code. The Code of Conduct for United States Judges for these lower court justices and judges is comprised of five canons. Canon 1 requires a judge to uphold the integrity and independence of the judiciary. Canon 2 requires a judge to avoid impropriety and the appearance of impropriety in all activities. Canon 3 requires a judge to perform the duties of the office fairly, impartially and diligently. Canon 4 permits a judge to engage in extrajudicial activities that are consistent with the obligations of judicial office. And finally, Canon 5 requires a judge to refrain from political activity. The ethical code announced by the Supreme Court is similar to the Code of Conduct for United States Judges with minor textual changes.

However, the new Supreme Court ethical code is significantly different from the Code of Conduct for United States Judges in one fundamental way – there is no enforcement mechanism if a justice does not abide by one of the Canons. The determination as to whether a justice has followed or violated the canon is left to the individual justice. LEARN MORE

Policy Analysis:

The surprise announcement by the Supreme Court of a new self – imposed code of ethics for the Court was likely in response to the numerous scandals that have plagued the court within the last year. Specifically, the revelations of the numerous gifts and perks that Justice Clarence Thomas received and did not disclose as well as an undisclosed trip received by Justice Samuel Alito caused an uproar that  some of the decisions by the Justices’ may have been improperly influenced by their relationship with Republican donors. The issuance of this new ethical code raises significant questions as to whether these scandals could have been prevented with this ethical code. A closer examination of the new ethics code reveals that the code is lacking in many areas that may render the code ineffectual in the long run.

One of the many criticisms of the new code raised by legal scholars is that the ethical code has no enforcement mechanism. What this means is that if there is a perception that a justice has violated one of the five canons there is no way to hold the justice accountable and no punishment or corrective course of action will be imposed on the justice. All of the federal appeals court judges and federal district court judges who are bound by the Code of Conduct for United States Judges face a complaint and grievance process and can have some of decisions made by them, such as whether to recuse from a case, reviewable from another court or panel. These are safeguards that lower federal court judges are subject to to ensure that the federal judges are not the one policing themselves. But these safeguards are noticeably missing from the new code issued by the Supreme Court. It does not seem appropriate that a justice could decide for him or herself whether or not he or she is in compliance with any of the canons. A tenet of the American justice system is that no person should be the judge or jury in his or her own case because of the obvious conflicts of interest in that scenario. That ability to hold a justice accountable is missing from this ethical code, which renders the code nearly worthless as a preventative measure.

The ethics code may also have been issued as a way to prevent Congress from crafting their own ethical code for the Court which would have left the justices helpless as they would not have much input into a code from Congress. But one interesting discussion about a possible ethics code from Congress was whether Congress had the authority to create one and impose it on the Court. Justice Samuel Alito was adamant that Congress could not constitutionally impose one on the Court as he believed only the Court had the power to do so. But in the light of the ethical lapses from Justice Thomas’ behavior and activities, some Justices (Amy Coney Barrett, Brett Kavanaugh) have quietly approved of the idea of an ethics code although they did not mention who should craft it. But history shows that the Supreme Court can write an ethical code with an enforcement mechanism for itself. The new code adopts older rules that regulates the teaching and speech giving activities of a justice, caps the amount a justice could receive teaching ($30,000 per year) and includes a process as to how a justice can be approved to teach a course of instruction. These safeguards demonstrate that third – party review of a justice’s activities are possible. These safeguards should be expanded to more activities than simply outside teaching.

And, there are plenty of models out there that the Court can emulate. Current Senate and House rules have limitations on what gifts members and staffers can accept. The Senate in Section XXXV has a detailed framework of rules with no gift more than $50 subject to other situations. And the House has a very detailed gifts guide in their House Ethics Manual.  What this illustrates is that most government institutions have gift guide restrictions to prevent the kind of corruption and loss of confidence that has stunned the Supreme Court this past year. If other government institutions are worried about the appearance of impropriety of gifts of more than $50 than the Supreme Court should follow the same logic to prevent gifts of trips and other perks that exceed the hundreds of thousands of dollars in value that Justice Thomas and Justice Alito are believed to have received. Putting a cap on the dollar amount on what a justice could receive would be in line with what most government officials are required to abide by.

The new ethics code announced by the Court was a welcome first step but it does not nearly go as far as it needs to when compared to what other federal judges and other government officials have to follow. More is needed and the Court, and Congress, can add those additional safeguards if they should so decide. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources:

• American Judicature Society – guide illustrating the ethical codes state judges are bound by.
• Brennan Center for Justice – a historical piece about an ethical and financial scandal that disgraced a Supreme Court Justice from the 1960’s.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.