Supreme Court, under pressure, issues ethics code specific to justices

Supreme Court justices stung by controversies over the court’s ethics pledged Monday to follow a broad code of conduct promoting “integrity and impartiality,” but without a way to enforce its standards against those who fall short.

A statement from the court said that while “for the most part” the guidelines were a compilation of standards the justices have tried to follow, the public commitment was necessary to correct a public “misunderstanding” about the justices’ ethical obligations.

The absence of an ethics code has given the impression “that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules,” said the statement, signed by Chief Justice John G. Roberts Jr. and his eight colleagues. “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 code contains broadly worded sections relating to outside relationships, participation in cases that could bring financial gain to family members, the use of a justice’s staff and limits on joining fundraising activities for groups.

An unsigned “commentary” accompanying the code indicates that justices will continue to make their own decisions about recusals and speaking engagements. It says justices should “consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public.”

The code does not squarely confront questions about lavish trips and gifts that some justices have received from billionaire friends, or questions about recusals.

The 14-page document was praised as a first step by some of the court’s Democratic critics, but criticized by legal ethics experts and others for not including a specific remedy for a complaint that a justice has violated the court’s standards and for giving justices too much discretion over recusal decisions.

Sen. Sheldon Whitehouse (D-R.I.), the lead sponsor of a bill to impose ethics rules on the court, called the code “a long-overdue step by the justices” but said it is not binding “unless there is a mechanism to investigate possible violations and enforce the rules.”

“The honor system has not worked for members of the Roberts Court,” Whitehouse said in a statement.

Stephen Gillers, a judicial ethics expert at New York University’s law school, said the code is “a commendable piece of work. The only surprise is that so simple a job took so long to gestate.” He said that many of the rules are general out of necessity and that the “proof of the pudding will come when we see the level of commitment the justices bring to compliance.”

The code prohibits justices from allowing “family, social, political, financial, or other relationships to influence official conduct or judgment.” Later, it says justices should recuse if there is a financial interest in a case, or a “personal bias or prejudice concerning a party” in a case.

Justice Clarence Thomas has been criticized by Democrats for participating in cases regarding the 2020 election and aftermath when emails revealed by The Washington Post and others showed that his wife, Virginia “Ginni” Thomas, was coordinating efforts with Trump White House officials to contest the election results.

But the code emphasizes that recusals should be rare because each justice is needed on a nine-member court — unlike on lower courts, there can be no replacement when a justice sits out. “In short, much can be lost when even one Justice does not participate in a particular case,” the statement says.

As to gifts like the luxury trips, the code says, “A Justice should comply with the restrictions on acceptance of gifts and the prohibition on solicitation of gifts set forth in the Judicial Conference Regulations on Gifts now in effect.”

Thomas and Justice Samuel A. Alito Jr. have said the trips for which they have been criticized were not specifically forbidden at the time. The rules were updated in March to clarify that all judges, including justices, must report private jet travel and instances when they are treated to stays at commercial properties, such as corporate hunting lodges.

The commentary also suggests the court is still looking for some answers. “To assist the Justices in complying with these Canons, the Chief Justice has directed Court officers to undertake an examination of best practices, drawing in part on the experience of other federal and state courts,” it says.

Soon after the court’s announcement, Sen. Richard J. Durbin (D-Ill.), who has long pressed for an ethics policy specific to the Supreme Court, stood on the Senate floor holding a copy of the code of conduct.

While he was still reviewing the fine print, Durbin said, the justices are “at least saying to the American people: We hear you and understand that the nine justices on the Supreme Court are members of a democratic form of government, not royalty, and that they should be held accountable, as all public servants in the federal government are held accountable.”

Amanda Frost, a professor and judicial ethics expert at the University of Virginia’s law school, called the court’s adoption of a formal code a “small but significant step in the right direction that all nine signed on to a statement making clear that certain conduct is not permissible” — a step, she said, that makes it less likely such conduct will occur in the future.

Frost and other ethics experts, however, were critical of the court for not acknowledging past transgressions and for the lack of any enforcement mechanism if a justice were shown to have violated one of the new rules.

Included in the code is a prohibition on justices speaking to or participating in meetings organized by a group if the justice knows that the group has a substantial financial interest in the outcome of a case before the court or one likely to soon come before the court.

Thomas was criticized after the investigative news site ProPublica reported that the justice spoke in 2018 at an annual meeting of donors to the Koch network, a conservative political organization with interests before the court.

The code also specifies that justices should not use their staff to “engage in activities that do not materially support official functions” or other permitted activities. The Associated Press reported that Justice Sonia Sotomayor’s staff encouraged public institutions that hosted the justice to buy her memoir or her children’s books.

Although the justices have said they voluntarily comply with the same ethical guidelines that apply to other federal judges, the lack of an ethics code specific to the Supreme Court has become a prominent complaint on Capitol Hill, where in 2019 Justice Elena Kagan told a congressional committee that Roberts was “seriously” studying the issue.

Even though the court’s legal counsel, Ethan Torrey, prepared a working document of issues for them to consider, the matter stagnated. Leaders of the American Bar Association said in a statement early this year that “the absence of a clearly articulated, binding code of ethics for the justices of the Court imperils the legitimacy of the Court.”

Gabe Roth, executive director of Fix the Court, said the code doesn’t address concerns about recusal and misconduct, and he took issue with the justices’ assertion in its opening statement that public criticism and concern about the court are based on a “misunderstanding” rather than ethical lapses by some justices.

He praised Roberts for directing an ongoing examination of other courts’ best practices to assess whether additional changes should be made to recusal and ethics guidelines. But he called the code a “very broad copy and paste from the lower court” code, and he echoed others’ comments about the lack of enforcement procedures.

It is unclear how the issuance of the code will affect activities on Capitol Hill.

Last week, Senate Democrats turned up the pressure, opening debate on the authorization of subpoenas for more information about the Thomas and Alito trips from Texas billionaire Harlan Crow, a longtime friend of Thomas, and judicial activist Leonard Leo, who was instrumental in building the conservative supermajority on the court.

Reports from ProPublica detailed how Crow paid for luxury vacations and private jet travel for Thomas over many years. Crow also purchased several properties from Thomas and his relatives and paid the private-school tuition for Thomas’s grandnephew.

Separately, Leo arranged for Alito to take a 2008 fishing trip to Alaska with a billionaire hedge fund manager.

The vote by the Senate Judiciary Committee was delayed because of strong opposition from Republican lawmakers who say the scrutiny of two conservative justices is a politically motivated response to the court’s recent rulings, including the expansion of gun rights and the elimination of the nationwide right to abortion.

Sen. Ted Cruz (R-Tex.), a member of the committee, said in response to criticism of the court’s code on Monday that “it wouldn’t matter what the court would do, the Senate Democrats would say it’s not enough. The only thing that Senate Democrats might be happy with is if every conservative justice resigned en masse.”

Durbin told reporters Monday night that Democrats have not yet decided whether to press ahead with committee votes to subpoena Crow and Leo.

Thomas and Alito have both said that under the rules in place at the time, they did not believe they needed to report private jet travel and free trips. In his annual financial disclosure this year, Thomas for the first time reported Crow’s purchase in 2014 of the family properties in Savannah, Ga., and reported three 2022 trips on Crow’s private jet.

In July, the Senate Judiciary Committee advanced legislation that would require ethics rules for the justices as strict as those that apply to members of Congress. The bill would also create a process to handle complaints against justices and allow a panel of chief judges from the lower courts to investigate and make recommendations based on those complaints.

Roberts in April turned down an invitation to testify before the Judiciary Committee, raising concerns about separation of powers. Instead, all nine justices signed a nonbinding “Statement on Ethics Principles and Practices.” The memo was criticized by Democrats as recycled and insufficient.

Since then, three justices — Kagan, Brett M. Kavanaugh and Amy Coney Barrett — have suggested in public remarks that the high court should act on its own to adopt a binding policy.

Tobi Raji contributed to this report.

This post appeared first on The Washington Post

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