Supreme Court adopts formal code of conduct amid scrutiny over ethics practices
Washington — The Supreme Court issued a code of conduct signed by all nine justices on Monday, laying out formal rules after months of intense scrutiny of the court's ethics practices.
The new code of conduct includes five canons that the justices should adhere to, including by upholding the "integrity and independence of the judiciary" and avoiding "impropriety and the appearance of impropriety in all activities."
It's unclear how the new policy will be enforced. Though derived from the code of conduct that applies to federal judges on the lower courts, the justices said in a "commentary" accompanying their ethics practices that the new policy is "tailored to the Supreme Court's placement at the head of a branch of our tripartite governmental structure."
In a statement announcing the new code, the justices said the document was intended to "set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the members of the court."
The high court acknowledged that in recent years, the lack of a formal code of ethics has created a "misunderstanding that the justices of this court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules."
"To dispel this misunderstanding, we are issuing this code, which largely represents a codification of principles that we have long regarded as governing our conduct," the court's statement continued.
The Supreme Court code of conduct
The code of conduct lists circumstances in which a justice should disqualify him or herself in a proceeding, namely when their impartiality "might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties."
It also states that while a justice may engage in activities outside of the court, they should refrain from those "that detract from the dignity of the justice's office, interfere with the performance of the justice's official duties, reflect adversely on the justice's impartiality, lead to frequent disqualification, or violate" specified limitations.
The new policy warns that justices should not, "to any substantial degree," use their chambers, resources or staff "to engage in activities that do not materially support official functions or other activities permitted under these Canons."
In their commentary accompanying the code, the justices said Roberts has directed court officers to examine best practices, looking in part to other federal and state courts, to help the justices comply. The court will also evaluate whether additional resources are needed in the Clerk's Office or Office of Legal Counsel "to perform initial and ongoing review of recusal and other ethics issues," according to the commentary on the policy.
In remarks on the Senate floor about the court's new policy, Senate Judiciary Committee chair Dick Durbin acknowledged that while it lays out "several important canons of conduct ... they fall short of what we could and should expect when a Supreme Court issues a code of conduct."
"I will note that the court's adoption of this code marks a step in the right direction," he said. "It may fall short of the ethical standards which other federal judges are held to, and that's unacceptable. And if it falls short, the American people will ultimately have the last word and the integrity of the court is at issue."
Durbin, an Illinois Democrat, said he will continue reviewing the code to determine whether it meets Senate Democrats' goal "that the highest court in the land not languish with the lowest standard of ethics in our government."
"But this release today, long overdue, begins a dialogue which could end with restoring the integrity of the court," he said.
Gabe Roth, executive director of the group Fix the Court, which advocates for more transparency by the high court, said in a statement that the new code leaves "much to be desired." The Supreme Court's decision to adopt a new ethics policy is the result of the justices failing "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," he said.
"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?" Roth said.
The justices under pressure
The Supreme Court has come under sustained pressure to adopt a set of binding ethics policies since April, when the investigative news outlet ProPublica began revealing travel arrangements and vacations that Justice Clarence Thomas accepted from Harlan Crow, a Texas real estate developer and GOP donor, over the course of their 25-year friendship. Thomas did not disclose the travel on his annual financial disclosure forms, but said he did not believe he had to do so under exemptions for personal hospitality.
The news organization also found that Justice Samuel Alito traveled to Alaska for a luxury fishing trip in 2008 aboard a private jet provided by GOP donor Paul Singer, and accepted lodging from Robin Arkley III, the owner of a California mortgage company. Alito also did not disclose the trip, but refuted that it should have been reported, also citing exceptions for personal hospitality.
Justice Sonia Sotomayor has faced scrutiny after the Associated Press reported that her court staff pushed public institutions to purchase her books, and she declined to recuse herself from copyright cases before the court that involved her book publisher.
In response to the reports about Thomas' and Alito's ties to wealthy benefactors, the Senate Judiciary Committee opened an investigation into the ethics practices at the Supreme Court and Durbin invited Chief Justice John Roberts to testify. Durbin has also repeatedly implored Roberts to take action and warned that Congress would step in if the high court declined to adopt a binding code.
Roberts declined the invitation to appear before senators but provided the Judiciary panel in April with a three-page "Statement of Ethics Principles and Practices," signed by the nine justices. The statement, though, did little to quell the concerns from Senate Democrats. Over the summer, the Judiciary Committee advanced along party lines legislation that would've required the Supreme Court to adopt an enforceable ethics code.
Several of the justices indicated in public speeches that an ethics code was under discussion. Justices Brett Kavanaugh, Amy Coney Barrett and Elena Kagan all separately suggested they favored the adoption of such rules.