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As the U.S. Supreme Court has confronted a series of tough-to-defend ethics controversies in recent months, most notably difficult questions surrounding Justice Clarence Thomas, there’s been a concerted push to have the high court embrace an ethics code. As public confidence in the institution wanes, even some sitting justices have acknowledged the merits of such a move.
It was just last month, for example, when Justice Amy Coney Barrett conceded that it’d be a “good idea” for the institution to adopt such reforms. Justice Elena Kagan made similar comments a month earlier.
The good news for those concerned about the integrity of the Supreme Court is that the justices have, in fact, adopted an ethics code — a first in the institution’s history. The bad news is, well, let’s get to that in a minute. NBC News reported:
The Supreme Court on Monday announced it has formally adopted what it called a new code of conduct following allegations of ethics lapses, although its impact is likely to be limited because the justices are left to enforce it themselves. The court issued a 14-page document that included five canons of conduct on issues such as when justices should recuse themselves and what kind of outside activities they can engage in.
The document itself was posted to the Supreme Court’s website midday, and it features more commentary than one might expect.
It didn’t take long for Democratic leaders to read the code and express their disappointment. “The Supreme Court took an important first step to set rules of the road for ethical conduct for justices. It is long past time for a code of conduct that explicitly applies to the justices,” Senate Majority Leader Chuck Schumer said in a written statement. “However, the lack of any way to enforce the code of conduct should any Justice decide to ignore it is a glaring omission.”
Similarly, Senate Judiciary Committee Chairman Dick Durbin characterized the move as “a step in the right direction,” before adding, “It may fall short of the ethical standards which other federal judges are held to and that’s unacceptable. ... The code of conduct does not have a meaningful mechanism to hold justices accountable. It leaves a wide range of discretion for individual justices, including decisions of recusal of sitting cases.”
Democratic Sen. Sheldon Whitehouse, who has been outspoken on the need for reforms, added that until the justices do more to address accountability concerns, “the job is not done.”
To appreciate why these senators responded as they did, it’s important to understand just how little the new Supreme Court ethics code actually does. It’s a historic breakthrough to the extent that the institution has taken a step it has never taken before, but a Politico report summarized the practical implications this way:
The “new” code announced Monday — as the court itself seemed to acknowledge in its introductory statement — is largely a repackaging of the court’s previous statements on ethics, including a compilation released in April as Roberts begged off testifying before a Senate committee. And even that April announcement was essentially a summary of various announcements and statements the court had made to journalists on ethics questions over several decades.
The document itself, signed by each of the nine justices, acknowledges the fact these new rules aren’t actually new at all. So why adopt them as a new ethics code? Because, they wrote, the lack of a published code “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.”
In other words, the Supreme Court believes we, the public, were simply confused. We saw some justices become embroiled in ethics scandals, grew concerned, and concluded that there's a need for new guardrails. The high court’s new statement effectively tells Americans, “Don’t worry, the guardrails were there all along, and we’re now putting them in writing to avoid any misunderstandings.”
If this was intended to be reassuring, the justices failed.