The Supreme Court this week adopted its first-ever code of ethics. The justices might as well have done nothing.
Congressional leaders and court watchers, many of whom have offered criticism about undisclosed trips and gifts from wealthy benefactors to some justices, called the guidelines a good first step.
Vermont U.S. Sen. Peter Welch noted on Monday that “the integrity of the U.S. Supreme Court matters — and that integrity has continuously been undercut by the Justices’ refusal to act in a transparent and ethical manner. This Code of Conduct is a long-overdue step in the right direction, but many important questions remain unanswered.”
Rightly so, Welch (and others) have questioned how the court plans to investigate potential violations?
“How does the Court decide what constitutes ‘the appearance of impropriety,’ and does the Court believe any of the recently reported trips and gifts crossed that line? And what consequences, if any, apply for established violations of the Code? Our work will not be finished until we have uncovered the full depth of past ethical lapses at the court and until we have ensured the American public that there is a transparent system in place to prevent future ones,” Welch said in his statement.
We could not agree more.
In a scathing rebuke of the code, the Alliance for Justice said, “There is no indication as to what could happen to a justice who violates it. This toothless approach makes the code largely symbolic and thus it will not increase accountability among the justices.”
It goes on to state: “Moreover, the code appears to be carefully constructed to circumvent and excuse all of the current ethics concerns plaguing the court. Nothing in the code, for example, would be bothered by Justice (Clarence) Thomas accepting lavish gifts and vacations from a wealthy conservative donor with obvious interests before the Court.”
The recent calls for a code of ethics are leveled on Justice Thomas, who has acknowledged not reporting lavish gifts and trips from wealthy GOP donors.
“If the Supreme Court’s code of conduct doesn’t, in effect, require Justice Thomas’s immediate resignation, it is worthless. Thomas has committed egregious and repeated violations of the law, and that much should be clear in a code of conduct. In addition, a code should have enforcement mechanisms that help restore the public’s faith in the Court. This code does neither,” the alliance’s president, Rakim H.D. Brooks, said. “We need a code that effectively prevents the wealthy and powerful from having undue influence on the Court. Congress must continue its work until we have one.”
Politico’s Josh Gerstein on Tuesday analyzed the code, confirming “the code contains no major breakthroughs, and it’s unlikely to initiate the sea change in the court’s practices that reform-minded advocates have pushed for.”
A longtime court reporter, he writes, “For years, the prospect of adopting a code has been quietly under discussion at the court, but justices were never able to reach consensus on it. The ‘new’ code announced Monday — as the court itself seemed to acknowledge in its introductory statement — is largely a repackaging of the court’s previous statements on ethics, including a compilation released in April as (Chief Justice John) Roberts begged off testifying before a Senate committee. And even that April announcement was essentially a summary of various announcements and statements the court had made to journalists on ethics questions over several decades.”
Many see the concern about the Supreme Court’s conduct as a political matter. Ultimately, we want our lifetime-appointed justices to live and work by the same ethical standards the rest of our government system uses. And while some justices seem to believe they are above such scrutiny and transparency, any eighth grader can tell you the three branches of government are the executive, legislative and judiciary. There are checks and balances in place to ensure those branches are not abusing power. Leveling the playing field — even for justices — does not seem as if Americans are asking too much.
But this toothless code of ethics just goes to show that the American process of governing is broken. Perhaps hopelessly. If the justices are not willing to police themselves, and there is no other mechanism for others to hold them accountable, what’s the point?
“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 justices 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.”
These guidelines do not resolve any of the misunderstandings. And they certainly do not mollify critics.
If anything, the U.S. Supreme Court just ruled that the American people have no need to trust its judgment.
