Supreme Court’s ‘New’ Ethics Code Won’t Actually Change a Thing

After months of ethics scandals, the Supreme Court presented a code of conduct this week that it has voluntarily written for itself. But the new code makes it effectively voluntary for any justice to follow it.

Written as a statement signed by all the justices, the first striking element is the ostensible motive for writing the code. It isn’t, apparently, that four of the nine justices have been caught up in financial scandals.

Chief Justice John Roberts’ wife earned millions after he joined the court, which a whistleblower says is due to her husband’s role at the court. Justice Neil Gorsuch failed to report the sale of an odd piece of land he had been trying unsuccessfully to sell for years while just a lower court judge. Justice Samuel Alito accepted, and failed to publicly report, a private jet trip and Alaska vacation.

And, of course, for Justice Clarence Thomas, the scandals just keep coming: at least 38 vacations, 26 private jet flights, multiple property deals, a multi-hundred-thousand dollar unrepaid “loan” to purchase a luxury motor coach, and private school tuition, all paid for by conservative donors.

Yet, the court claims it isn’t the justices’ behavior that is the problem. Rather, they say there’s been a misunderstanding by the public that the justices “regard themselves as unrestricted by any ethics rules.” The court issued its new code of conduct to “dispel this misunderstanding.”

The justices’ likely real motive in providing this code of conduct is that it’s so much better for them than a policy with any actual consequences, written by someone other than the justices. Numerous members of Congress have been talking about instituting a code of conduct with bite.

This voluntary code is much better from the justices’ point of view because it has no bite. The consequences for a breach of this code? There are none.

The court stresses that there is little new in its code, “which largely represents a codification of principles that we have long regarded as governing our conduct.” Why, then, would we expect it to change any misbehavior?

Each of the main elements of the code—which they claim they are already adhering to—is at odds with some justices’ behavior.

The first provision of the code dictates a justice “should maintain and observe high standards of conduct in order to preserve the integrity and independence of the federal judiciary.” All the above-listed scandals are contrary to this directive. This is one of the reasons why the court has the lowest approval rating in its history.

Likewise, the second provision provides various ways “a justice should avoid impropriety and the appearance of impropriety in all activities.” But this is the problem with the justices’ various scandals.

Many defenders claim Thomas, for instance, isn’t biased by the enormous value of gifts he has received, because he would have voted conservatively in all the cases he did anyway. But even if this is true, it taints the court’s legitimacy and gives the appearance of impropriety, even if not its actuality.

The third provision contains many elements that justices have breached. It mandates that a justice “should not retaliate against those who report misconduct.”

Yet this is exactly what Alito did: ProPublica approached him to offer a chance to respond to the allegations against him. Instead of responding, he cut the ground from under them, publishing his response before they had a chance to publish. This is a gross breach of norms of reporting, as it undermines the incentive for journalists to give future reporting targets a chance to respond.

Alito provides another example of an alleged violation of a different aspect of the third provision: “a justice should not initiate, permit, or consider ex parte communications” with pending or upcmoing matters.

Prior to the famous leak of the Dobbs v. Jackson Women’s Health opinion jettisoning abortion rights, Alito is alleged to have leaked the result of another abortion case, Burwell v. Hobby Lobby, to friends with an interest in the case, though he denies this.

And when it comes to recusal, the code still leaves it up to the individual justice to “disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned.” Thomas didn’t disqualify himself in any of the cases concerning the 2020 election, though, despite his wife being actively involved in efforts to overturn the election.

When it comes to the heart of the recent scandals, accepting gifts and failing to report them, the code spells out in its fourth provision that “reflect adversely on the Justice’s impartiality.”

It more explicitly specifies that a justice “should comply with the restrictions on acceptance of gifts and the prohibition on solicitation of gifts set forth in the Judicial Conference Regulations on Gifts now in effect.” But those regulations were in effect for the last 20 years, during most of which Thomas was flouting them.

Either these provisions prohibit the various bad behavior we have witnessed—behavior already prohibited by the rules this code simply “codifies”—or the provisions mean nothing.

Most thinking people know what those rules require. Justice Elena Kagan famously refused to accept a gift of bagels and lox from friends because she feared doing so wouldn’t comply with the court’s ethical rules and expectations.

It may seem extreme to not be able to accept a care package, but people should err strongly on the side of caution when the person is a government official with huge discretionary power.

It’s vital to maintain the people’s faith that exercise of such power will be removed from any influence, however light the touch. And if that means foregoing gifts that make the court look bad or bring the decision-maker individually into disrepute, that is what government officials should do.

We clearly can’t rely on some of the justices to do that. As such, we need a code of conduct that meaningfully changes their behavior.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Tonja Jacobi is professor of law and Sam Nunn Chair in Ethics and Professionalism at Emory University School of Law, where she specializes in Supreme Court judicial behavior and public law.