DemDaily: Supreme Court Unveils New Ethics Code

November 15, 2023

The US Supreme Court yesterday announced a formal code of conduct for its justices in response to a historical crisis of confidence in the nation's highest chamber.

Americans' trust in the court, already under steady decline, turned to public outcry after revelations earlier this year that Supreme Court Justice Clarence Thomas had received millions of dollars in gifts in violation of government ethics laws. That Thomas scandal was swiftly followed by allegations against other justices.

Under the Ethics in Government Act (EIGA) of 1978, passed in the wake of the Nixon Watergate scandal, federal officials, including Supreme Court justices, are required to disclose the sources and amounts -- in excess of $1,000 -- of income, gifts, property, investments, and, among others, financial interests of a spouse.

SCOTUS remains the only court in the federal judiciary that is not accountable for violation of this code, with its members left to their own recognizance to police themselves. Only impeachment -- which requires a majority vote in the House and two-thirds in the Senate -- can remove a justice.

Betrayal of Trust
As first reported by ProPublica in April, Thomas failed to report over twenty years' worth of annual luxury trips and gifts, including real estate and private school tuition for his grandnephew, from Republican mega-donor and Dallas real estate billionaire Harlan Crow.

The revelations were among multiple ethics questions surrounding the 75-year-old conservative associate justice, who has served on the high court since 1991.

In 2022, Thomas ignored pleas to recuse himself from cases that involved efforts to overturn the 2020 presidential election after the House January 6 Committee investigation revealed that his wife, influential conservative activist Ginni Thomas, had been in direct communication with the White House to advocate for the conspiracy schemes. He also failed to report the source of Ginni's income over a number of years, including from an organization to which Crow donated $500,000.

In another instance, uncovered by The New York Times, Thomas bought a $267,230 ​​recreational vehicle with financing from a wealthy benefactor who forgave much of the loan. The extent and frequency of such "gifts" to Thomas are unprecedented in the modern history of the Supreme Court.

Justice Samuel Alito has been criticized for failing to disclose a 2008 trip on the private jet of Paul Singer, a hedge fund billionaire and major Republican donor who later had cases before the Supreme Court. The fishing excursion was organized by Federalist Society leader Leo Leonard and hosted without cost by major GOP donor Robin Arkley, the owner of the resort.

In 2017, after two years on the market, Justice Neil Gorsuch and two partners sold a Colorado vacation property for $1.8 million. Gorsuch failed to report the identity of the buyer -- the CEO of a major national law firm with regular business before the Supreme Court -- who purchased the property within a month of Gorsuch's appointment.

"The undersigned Justices are promulgating this Code of Conduct to set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the Members of the Court...For the most part these rules and principles are not new...The absence of a Code, however, 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. 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 US Supreme Court 11/13/23

The code, laid out over nine pages and accompanied by a five-page commentary section, largely outlines ethics guidelines already in place for lower court judges. The document, however -- signed by Chief Justice John G. Roberts Jr. and his eight colleagues -- still lacks any legal accountability.

It does not place specific restrictions on gifts, other than those "set forth in the Judicial Conference Regulations," but cites the dangers of "outside influence... A Justice should not allow family, social, political, financial, or other relationships to influence official conduct or judgment."

According to the newly minted rules, justices should not take part in outside activities 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” or “lead to frequent disqualification.”

The code is specific about recusal if family members, such as a spouse or minor child, has a financial or “any other interest that could be affected substantially by the outcome of the proceeding.”

The commentary section also addresses use of official government aides for duties related to the justices’ personal lives. Concerns were expressed over Justice Sonia Sotomayor's use of court staff in setting up her schedule and trips including her book tour.

However, in light of the personal threats received by some of the court, the new code clarifies that -- for security reasons -- justices are permitted to use their office resources in making plans.

Although the Senate Judiciary Committee has been investigating potential ethics violations by the justices since May, their efforts at advancing legislation have been stalled by Republicans in the closely divided Senate.

Senator Sheldon Whitehouse (D-RI), the lead sponsor of a bill to impose stronger ethics standards on the court, ceded some credit to the new code as “a long-overdue step by the justices, but a code of ethics 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.” -- Senator Sheldon Whitehouse

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Kimberly Scott
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Sources: ProPublica, Washington Post, Vox, NBC, Project on Government Oversight, Politico, Supreme Court, NPR

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