But for an institution that is both powerful and, by design, insulated from public pressure, this move still represents a substantial symbolic act of public accountability. It will also discourage scandalous behavior and make it easier for watchdogs to shame justices who bend or break the code.
The code represents a much-needed dose of humility after recent years’ reports on some of the justices’ activities, such as Clarence Thomas’s regular luxury excursions on conservative campaign contributor Harlan Crow’s dime, or Samuel A. Alito Jr.’s also-undisclosed trip on the private jet of billionaire Paul Singer, who later had business before the court. These and other episodes highlighted that, despite Chief Justice Roberts’s assurances of the justices’ probity, neither the public nor the justices could compare court members’ behavior against written standards, let alone scrutinize whether those standards were reasonable.
The new code reflects the ethics rules that lower courts follow, with a few notable differences. Take recusals. Because the justices are few and their judgment is final, any one’s stepping aside could mean drastically different outcomes in crucial cases. The bar for sitting out a case ought to be higher for justices than for their lower-court colleagues, and the code says so.
In other areas, the justices go too easy on themselves, such as by merely urging divestiture from financial holdings that might frequently require them to disqualify themselves from hearing cases. The rules say the justices can’t speak at fundraising events for “law-related or other nonprofit organizations,” suggesting they can no longer hold forth at, say, the Federalist Society’s annual dinner. But they can continue to attend those events, and, thanks to the lack of a definition for “political organization,” they might also be able to attend gatherings even more closely connected to politics.
Skeptics’ greatest concern, however, has to do not with what justices say they should do but with ensuring they actually do it. The court’s newly articulated principles seem to prohibit much of the sketchy conduct recent media reports revealed. Yet the court isn’t acknowledging that any lapses occurred, and it’s unclear how the court would address future failures.
Some court ethics activists want Congress to create an accountability system. Ideas include tapping a panel of lower-court judges or a committee of past Supreme Court justices to review court members’ behavior. Whatever their practical merits, these proposals raise separation-of-powers questions about just how much authority Congress has to regulate the judicial branch. Federal lawmakers might set the court’s size, budget and salary levels — but can they force justices to behave in specific ways? It’s a legitimate question and would likely prevent lawmakers from uniting behind a plan to create a mandatory Supreme Court ethics enforcement system.
Congress retains substantial investigative powers. Sen. Sheldon Whitehouse (D-R.I.) and his colleagues on the Senate Judiciary Committee have probed perceived shortcomings on the court. Federal legislators also may impeach justices who behave egregiously. The new code will make it easier for congressional overseers and investigative reporters to compare justices’ actions against specific guidelines; the potential for public shame will discourage bad behavior. Following the recent reports on the justices’ doings, the justices have already started changing what they disclose.
Of course, the court itself could create a body to oversee the justices’ compliance with its ethics code. But because any oversight body would be accountable only to the justices, it could not issue mandatory orders. Nevertheless, in the documents it released Monday, the court pointed to another option — the court Clerk’s Office or Office of Legal Counsel might “perform initial and ongoing review of recusal and other ethics issues.” Though not adversarial like an inspector general’s office might be, an existing office could assist justices in muddling through the gray areas in their new code, and it could issue reports on when they’ve gone wrong on the black-and-white ones.
Already, the court’s code of conduct is an improvement on the status quo ante: nothing at all. No longer can the justices argue that they didn’t know what the rules were if they’re caught breaking them. The court will have an easier time regaining public trust if, in addition, the justices find a way to show they are following the new rules they have set for themselves.
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