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“The U.S. Supreme Court on Monday announced its first formal code of conduct governing the ethical behavior of its nine justices… The nine-page code contains sections codifying that justices should not let outside relationships influence their official conduct or judgment, spelling out restrictions on their participation in fundraising and reiterating limits on the accepting of gifts.” Reuters
The right generally supports the code, and accuses the Court’s critics of acting in bad faith.
“[The Court] will get no credit for this from its critics, but the code is a positive step and one that deprives them of a bad-faith talking point. It makes it easier for members of the public and the bar to review in one place the standards that the justices hold out as governing their own behavior. It makes it harder for Congress to justify enacting legislation that would impose a code of dubious constitutionality…
“The well-financed campaign to paint the conservative justices (and only them) as unethical is only one prong of a wider effort to intimidate and/or discredit the Court and its justices by physical protest, threats of violence, smears, and proposals to restructure the Court. Nonetheless, it has had an effect because members of the public who don’t follow the Court closely just keep hearing that the justices not only are acting unethically but are also not subject to any rules…
“What will likely sting the critics is that there is no provision for any of this to be enforced by anybody else short of impeachment by Congress or criminal prosecution in an extreme case (such as that of a justice who accepts bribes). But the same can be said of the Senate and the House: They are responsible for the discipline of their own members… An independent judiciary is supposed to be independent, and the Supreme Court is supposed to be supreme within that system.”
Dan McLaughlin, National Review
“Lots of folks are already racing to fault the Code for not having an enforcement mechanism. But as Russell Wheeler of the liberal Brookings think tank has forcefully argued, ‘The absence of formal review mechanisms for justices’ ethical decisions is a necessary imperfection in the system,’ and proposals to correct that imperfection ‘would likely create more problems than they would solve.’…
“Even the proposal by law professor Steve Vladeck for Congress to create an enforcement mechanism would ultimately entail nothing more than a reporting requirement on a newly created Article III Inspector General. I say this not to criticize the proposal but only to observe how far short it falls of the sort of enforcement measures that some critics of the Court mistakenly imagine to be possible.”
Ed Whelan, National Review
“Despite the headlines in recent months about which Justice went on a vacation with which wealthy friend, those people did not have business before the Court, and no one has come up with a genuine conflict of interest or a case where the recusal standard has been broken… If Chief Justice John Roberts is hoping to deflect partisan attacks on the Court, it’s likely to be a bad political bet. The critics are already calling the code inadequate and see it as proof that the Justices will bend to political pressure.”
Editorial Board, Wall Street Journal
The left argues that the code does not go far enough, and urges stronger requirements.
The left argues that the code does not go far enough, and urges stronger requirements.
“[The code] is based on the American Bar Association’s Model Code of Judicial Conduct, which is used throughout the country. In structure and in content it is largely the same. Indeed, all that’s remarkable is how long the court delayed taking this easy and obvious step — and how much pressure was required before the court acquiesced. But there is a crucial problem with what was released on Monday. It continues to defer to each justice about whether he or she should be disqualified from hearing a particular case…
“No person should be a judge of himself or herself. There must be a mechanism to determine when a justice should be recused that does not leave it entirely up to that individual… ‘Trust us’ is never an adequate answer, especially when dealing with matters of ethics.”
Erwin Chemerinsky, Los Angeles Times
“A subsection in the code states, ‘The rule of necessity may override the rule of disqualification.’ That may seem reasonable enough, until we get to the commentary’s definition of necessity, which is capacious enough to obviate virtually any otherwise required recusal. The commentary explains at length that ‘the loss of even one Justice may undermine ‘the fruitful interchange of minds which is indispensable’ to the Court’s decision-making process.’…
“In addition, ‘the absence of one Justice [potentially prevents] the Court from providing a uniform national rule of decision on an important issue.’ It therefore appears that a clearly conflicted justice may nonetheless be ‘indispensable’ and may therefore participate in a case, so long as it involves a sufficiently “important issue.’… Read together, the code and commentary provide only that the justices will recuse themselves if they feel like it.”
Steven Lubet, Slate
“For the most part, the code would not have prevented, nor would it punish or otherwise address, the episodes that have so alarmed the public. Not Justice Clarence Thomas’s acceptance of, and failure to disclose, luxury vacations and travel from Dallas billionaire Harlan Crow. Not his failure to recuse himself from Jan. 6-related cases despite his wife’s involvement in challenging the election results…
“The court needs to safeguard its independence, so it is, admittedly, tricky to figure out how to craft an enforcement mechanism. But there are smart ways to set up a system that protects the judiciary without sacrificing accountability. One smart approach would be to establish a panel of judges, perhaps retired jurists, who could examine ethics complaints and issues of compliance. Another, as former Justice Department inspector general Glenn Fine has urged, would be an inspector general who could do the same. But a code without oversight is mere window-dressing.”
Ruth Marcus, Washington Post
