In response to calls for increased accountability in the courts, the U.S. Supreme Court released its first-ever ethics code (Ian Hutchinson, Unsplash).
On November 13, the Supreme Court of the United States released its first-ever ethics code, attempting to quiet national turmoil over the behavior of the justices in the past years. However, in both parties, there has been a distinct reaction questioning the intentions and efficacy of the new code.
What is the Ethics Code?
Mirroring the code of conduct for lower federal judges, the new ethics code attempts to prevent moral indiscretions by the Supreme Court justices. The 14-page document includes five canons of conduct that define recommended actions in the face of Supreme Court issues, describe when a justice should recuse themselves from a case, and outline activities justice can partake in outside their position. All nine justices have signed and committed to the new document.
Why Make an Ethics Code?
The new code was released in response to a growing call for increased transparency from the court and criticism of the lack of enforceable ethics guidelines to hold justices to.
According to Pew Research Center data, only 44 percent of Americans view the court favorably while the 54 percent majority hold an unfavorable opinion. Many attribute this decreased confidence in the Supreme Court to actions by justices over the last few years. For example, Justice Clarence Thomas has been accused of having unreported financial ties with billionaire Harlan Crow, a major donor to the Republican party. Another justice, Sonia Sotomayor, has been accused of using her taxpayer-funded staff to increase sales of her book on college campuses. Similarly, Justice Samuel Alito has been accused of traveling on a private jet and staying at an Alaskan fishing lodge without disclosing it. These incidents, among others, have prompted the American public to push for an ethics code that will keep justices accountable.
Democrats in the Senate Judiciary Committee have been working to pass another ethics code for months before the announcement. Their bill finally passed the committee in July, although all ten Republicans voted against it. If passed, the bill would require justices to submit a written explanation for not recusing themselves as well as create more transparency around gifts to justices. However, no actions have been made on the bill since it was passed out of committee. While the bill is unlikely to pass in the Republican-controlled House and the closely divided Senate, the court decided it would be best to form their own code first.
What do Democrats think?
While Democrats were the original force in implementing an ethics code, the reaction of many leans further towards disappointment than accomplishment. The main grievances voiced since the release of the code are centered around its leniency and lack of enforcement.
The ethics code reflects the code of conduct for lower judges, except the word “should” substitutes “must” in all but six specific scenarios. This causes the rules outlined to behave more as suggestions than mandates. Democrats believe there is cause for concern that these directions will simply be ignored by the justices.
In addition, Democrats cite the lack of enforcement as a worry for the efficacy of the new code. Without a binding mechanism to enforce the rules or a court of its own to investigate whether the justices’ actions fall under the minorly vague directives, the code seems pointless to many. Widely perceived as a more symbolic than a practical gesture, aimed at quieting the discontent of Americans without creating any meaningful change, Democrats are not impressed with the release of this new code.
What do Republicans think?
Republicans are not in support of the new code of conduct, mainly because they believe it is an effort to make the six to three conservative majority seem illegitimate. They also believe that the claims of substandard ethics are unfairly focused on conservative justices.
Viewed as a way for enraged Democrats to get back at the Supreme Court’s rulings, such as Dobbs v. Jackson Women's Health Organization which overturned Roe v. Wade, the ethics code is opposed by most Republics. With the adoption of the current code, some Republicans worry that further scrutiny of the actions of current justices will open the door for a harsher code that could impair their strong majority.
Even so, conservative-leaning Supreme Court Justices Amy Coney Barrett and Brett Kavanaugh both have encouraged the adoption of the code, hoping it will create more confidence in the court amidst the current outcry across parties.
The new code still leaves many questions about the future of a Supreme Court ethics code. Eventually, the code will need to specify the method of enforcement for the directions it entails. In addition, the current code does not cover the rules regarding the behavior of spouses or families of justices, disclosure of private information, and financial interests. All of these things will surely arise, along with the debates around the constitutionality of ethics codes applied to the courts by Congress. While the justices avoided this issue by creating their own ethics code, it is unclear whether they will allow Congress to regulate their behavior and the enforcement of the rules they have created. It seems the new ethics code put in place has left the country with more moral and constitutional questions than it has solved.
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