Supreme Court Offers Tepid Code of Conduct After Months of Backlash

Phil Roeder | Flickr.com

The United States Supreme Court has officially adopted a binding code of ethics after years of ambiguity, months of renewed controversy, and the looming threat of Congressional intervention—but important questions and glaring weaknesses remain.

In the written preamble to the code itself, the Court says though it “has long held the equivalent of common law ethics rules,” the absence of a formal 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.

For context: ethics guidelines are imposed on members of Congress, the executive branch, and the judiciary. Judicial ethics are enforced by the Judicial Conference of the United States against every level of the federal judiciary.

Except the Supreme Court, which previously would commit only to consulting the code of conduct. It’s a glaring weakness of our democratic republic: the branch of government with effectively the weakest ethics requirements is also the one led by nine unelected, lifetime appointees.

The incongruity has long troubled Democrats—Senate Judiciary chairman Dick Durbin led an effort challenging the Supreme Court to adopt a code of ethics more than a decade ago—and has increasingly become a topic of public controversy.

Earlier this year, the investigative news site ProPublica dropped a series of bombshell stories detailing the wildly inappropriate financial relationship between conservative Justice Clarence Thomas and far-right billionaire donor Harlan Crow, who bankrolled lavish (and often unreported) gifts for Thomas: vacations, yacht trips, and even funding the education of one of Thomas’s relatives.

As the stories persisted and the pressure mounted, Senate Democrats invited Chief Justice John Roberts to address the matter before Congress. Roberts declined, citing separation of powers concerns. In turn, Democrats began to demand that the Court adopt a binding code of ethics for itself—or else be subject to such legislation from Congress.

Over the hysterical outrage of Republicans, Senate Judiciary Democrats planned to subpoena Crow and conservative activist Leonard Leo for their roles in organizing or providing such lavish gifts to the Justices.

Will this move by the Court mollify Democrats? Perhaps not—and it probably shouldn’t.

Though the code is ostensibly binding, it doesn’t impose any significant new requirements on the Justices and lacks any viable enforcement mechanism.

It doesn’t even mention how to file a complaint in the first place.

Therefore, Congressional Democrats and activists should maintain the pressure. It’s clearly working.