Supreme Court adopts code of ethics

After months of deflecting accusations from the public and Congress about ethical violations, the Supreme Court conceded and issued its first ever formal code of ethics on Monday. All nine justices agreed to the same standards, most of which are pulled from the Code of Conduct for U.S. Judges. But the lawmakers across the street in the Capitol still have concerns.

A series of breaking stories this spring and summer questioned the ethics of several judges, prompting the creation of the code. In a statement on the first page, the court wrote that the document isn’t creating a new system of ethics for judges, it is simply explaining what was already voluntarily practiced.

“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,” the court wrote. “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 15-page document lays out both general and specific boundaries for justices to avoid conflicts of interest and maintain the independence of the court. The code defines who counts as a member of a justice’s family and when a judge should recuse himself or herself from proceedings because of possible bias. The standards are pretty straightforward: a judge is disqualified in proceedings if a family member or previous associate is involved or would be directly affected by the outcome. Many of the boundaries are financial. For example, justices shouldn’t speak at fundraising events or events that sell a product, aside from their own books. Justices also shouldn’t accept payment for speaking engagements except for travel cost reimbursement.

In April, ProPublica published a story on Justice Clarence Thomas’ shared vacations with Harlan Crow, a real estate developer who has donated millions of dollars to Republican candidates and campaigns. ProPublica cited legal experts criticizing Thomas for not disclosing the nearly annual trips paid for by Crow. Thomas defended himself in a statement to the news outlet, stating that he’d sought counsel from advisers and been told that disclosing the hospitality of friends was unnecessary. Crow said in a statement that the hospitality was purely based on friendship, and that he never asked Thomas about the court’s decisions. ProPublica also reported that Crow bought real estate from Thomas that Thomas did not disclose in financial statements.

In June, ProPublica broke another story, this time about Justice Samuel Alito’s fishing trip with conservative activist Leonard Leo and Republican donor Paul Singer in 2008, in which Singer flew Alito on a private jet to a fishing lodge. Alito didn’t disclose the trip on financial documents. He also didn’t recuse himself when a case involving Singer’s hedge fund came before the court. The code only addresses travel for events, saying justices can accept reimbursement for travel costs but only “if the source of the payments does not give the appearance of influencing the Justice’s official duties or otherwise appear improper.”

In July, the Associated Press reported that Justice Sonia Sotomayor leveraged publicly-sponsored travel to increase book sales. Justices are not allowed to accept payment for public speeches, but they can accept royalties from book sales. According to emails, Sotomayor’s staff encouraged event organizers to purchase large quantities of Sotomayor’s books and to have a signing line. Sotomayor did not recuse herself in several Supreme Court cases involving Penguin Random House, the publisher of her work. The court later stated that Sotomayor was unaware of Penguin’s involvement in the cases.

Since 1978, the Ethics in Government Act has required justices to submit annual financial disclosures. Then the Judicial Conference, the administrative arm of the judicial system which Chief Justice John Roberts chairs, quietly beefed up reporting requirements in March to narrow an exception for “personal hospitality” gifts. Most of the document tells the justices to avoid any impressions that their involvement with an event, a donor, or financial compensation is improper. But the court of public opinion might not be satisfied.

Sen. Dick Durbin, D-Ill., has been demanding the court implement an ethics code since 2012. He now chairs the Senate Judiciary Committee, which has been conducting an investigation into the court’s ethics controversies. Durbin was not mollified by the court’s new guidance. Codifying old standards that were not upheld in the first place is not helpful, he said on the floor.

“The Court’s new code of conduct does not appear to contain any meaningful enforcement mechanism to hold justices accountable for any violations,” Durbin said. “It also leaves a wide range of decisions up to the discretion for individual justices, including decisions on recusal from sitting on cases.”

Fellow Judiciary Committee member Sen. John Cornyn, R-Texas, however, said that the recent action from the court means that Congress should now back off.

“Any decision about the Supreme Court’s rules, including their recusal rules or formal code of conduct, should not come from the Congress,” Cornyn said from the Senate floor yesterday. “It should come from the court itself, and now it has done so. I hope this development will also encourage the chairman of the Judiciary Committee to abandon his latest partisan attack on the court.”

Sen. Sheldon Whitehouse, D-R.I., is still waiting on his own bill, the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act. It passed the Judiciary Committee in July but has yet to reach the Senate floor. If passed, it would create a system where other judges could weigh in on ethics complaints and require the justices to explain all recusal decisions to the public.

“This is 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,” Whitehouse said in a public statement after the code was released. “The honor system has not worked for members of the Roberts Court.”