Supreme Court Adopts Ethics Code. Who Is Going To Enforce It? WHO KNOWS?!?!?

// After months of getting absolutely hammered on questions of judicial ethics, the Supreme Court has, at long last, dropped an ethics code. (Available in full below.) It… leaves a lot to be desired. I guess they get points for trying? But like Chance the Rapper fans waiting for The Big Day, those impatient for *something* to be done on SCOTUS ethics have been left disappointed.

Let’s *briefly* rehash the most glaring SCOTUS ethics issues that have surfaced this year. There’s the two decades of Justice Clarence Thomas receiving travel and other gifts from billionaire Harlan Crow. And there’s more financial entanglement between the two men — Crow bought from Thomas three pieces of property, including one Thomas’s mother lives on, and improved it, all with Thomas’s mother never paying rent. Crow paid for schooling for the family member Thomas considers like a son. He was a member of a fancy rich person club, and had bunches of billionaire friends that lavished him with pricey gifts. Even the RV Thomas uses to establish his everyman bone fides was financed by a rich buddy, via a “loan” that was never paid back.  Money was also funneled to his wife, Ginni Thomas, as yet again, Ginni’s advocacy work butted up against the work of the Court. (You may recall her post-election advocacy made Clarence’s votes on matters related to the January 6th committee super suspect. She led a grassroots movement in support of Trump’s travel ban, worked for right-wing think tanks, and led efforts to defeat the Affordable Care Act. And if the Thomas household just happens to make ~$700,000 in income for Ginni’s advocacy work that — oopsie! — Clarence forgets to report on disclosure documents, well, what can be done? Though Ginni continues to deny she discusses her work with her husband, even though Clarence is her “best friend.”)

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But Justice Thomas wasn’t the only jurist caught up in the scandals. There was the questionable Neil Gorsuch real estate deal. The luxury trips taken by Samuel Alito. And (stupidly) the work of Jane Roberts, wife of the Chief, also came under scrutiny. As did Sonia Sotomayor’s publishing deal.

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It’s against this backdrop that the Court felt pressured to take action on ethics. But the effort is very much a swing and a miss.

Let’s start with the most glaring issue: there are no penalties or any enforcement mechanism for the code. Without enforcement, it’s much more “thoughts and prayers” than actual policy.

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Nothing in the 14-page document, or the one-page cover note, addresses the elephant in the room:

*Whatever* rules the justices *say* they are bound to follow, *who* is going to enforce those rules—and how? https://t.co/k5Janzv5bq

— Steve Vladeck (@steve_vladeck) November 13, 2023

Moreover, it is questionable whether the exact controversial scenarios we know are happening at the Court are covered by the code.

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Live shot of John Roberts trying to call these ethics rules in front of me and my friends. pic.twitter.com/niG2Z2GT9e

— Elie Mystal (@ElieNYC) November 13, 2023

Speaking of problematic carveouts:

It's cool that the Supreme Court's new "code of conduct" includes an all-but-explicit Federalist Society Convention Carve-Out pic.twitter.com/hHU3RpOa4n

— Jay Willis (@jaywillis) November 13, 2023

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I felt the "fundraising" section was even more explicit. It's basically like "And this is why the FedSoc gala is totally cool and very ethical for us to do."

— Elie Mystal (@ElieNYC) November 13, 2023

 

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Much of the code is lifted from the ethical code that binds lower federal courts, without the enforcement, natch. But they made a few changes to that code… leading to more questions.

Legal ethics experts refer to this as The Ginni Thomas Clause https://t.co/VzxLGxGDGH

— Jay Willis (@jaywillis) November 13, 2023

Fix the Court’s Gabe Roth eviscerates the half measure promulgated by the Court as a more blatant PR stunt than the Traylor relationship. (JK: I’m fully in camp Taylor-and-Travis-are-Endgame, but this code is largely performative garbage.)

“The prologue to the Supreme Court’s new ethics code gives away the game: the justices say that recent public concern over their conduct is merely a ‘misunderstanding,’ and the Code is being put in place to ‘dispel that misunderstanding.’

“Yet this recitation is untrue. There’s a Code today because the justices have clearly and for years failed to live up to their ethical responsibilities, and once the public finally caught wind of it to a large degree, the nine had little choice but to react to that pressure.

“Unfortunately, that reaction, and this Code, leave much to be desired. That it’s largely a copy-and-paste job from the lower court’s code fails to account for so much. For example, under the new Code, there remains today no way for a lawmaker or member of the public to file a complaint against a justice for misconduct. There’s no way for an outside source to advocate for recusal when a justice participates in a case despite an obvious conflict. There are serious oversights that demand corrections.

“If the nine are going to release an ethics code with no enforcement mechanism and remain the only police of the nine, then how can the public trust they’re going to do anything more than simply cover for one another, ethics be damned?

“What’s more, the Code appears to defend some of the justices’ worst offenses by adding language to the lower court’s code that effectively excuses, for example, Justice Thomas’ attendance at Koch retreats (the addition of the word ‘knowingly’ to Canon 1) and his free gifts and travel from Harlan Crow and others (it’s the ‘now in effect’ gift rules the nine must follow in Canon 4). These additions aren’t fooling anyone.

“If there’s one positive from the Code it’s a sentence at the end of the commentary clearly written by the Chief Justice noting he’s unilaterally directing those under his purview to examine best practices in ethics and continue work in this area.

“Sadly, it is unclear if the other eight agree that more needs to be done here, or if they simply hope today’s missive will be the end of the story.

“Fix the Court does not see this as the end, and in that spirit, we’ll have additional suggestions on where to go from here in the coming days.”

There’s certainly a lot more work to be done to read this code as anything more than an aspirational statement.

The full Code of Conduct for Justices is below.

Code of Conduct for Justices_November_13_2023

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].

Topics

Clarence Thomas, Courts, Gabe Roth, Judicial Ethics, SCOTUS, Supreme Court