Supreme Court adopts ethics code. Will it restore public trust?

For the first time, the Supreme Court of the United States has adopted a formal code of conduct.

The 14-page document, issued this week and signed by all nine justices, comes after months of public pressure over alleged ethical lapses. It codifies what until now had been an informal ethical standard governing the high court. It also comes after favorable views of the Supreme Court reached an all-time low this summer, according to Pew Research Center.

Whether the code’s existence itself will be enough to restore that trust remains to be seen. The code features the word “should” 53 times but is silent on what will happen if a justice veers from ethical standards outlined. And that, legal-watchers say, is a startling omission.

The lack of a code is “something that has been a glaring oversight for so many years. ... But when it came time to put pen to paper, I think they fell short,” says Gabe Roth, executive director of Fix the Court, a nonpartisan nonprofit advocating for more transparency in the federal judiciary.

But it’s positive the court has responded to that public pressure, he adds. “They represent all of us in one way or another – not in how they decide cases, but as an institution. And on institutional practices, there should be public pressure.”

For much of the year, the justices have faced questions about alleged ethical improprieties. The public scrutiny began with ProPublica reports detailing undisclosed gifts that Justice Clarence Thomas has received for decades from billionaire Republican donors, ranging from vacations and private jet travel to forgiven loans and tuition for a relative. Reports allege that Justice Samuel Alito also failed to disclose subsidized vacations. Justice Sonia Sotomayor and Justice Neil Gorsuch faced questions about publishing sales and questions of recusal.

While all other members of the federal judiciary are subject to the judicial code of conduct, the justices largely have policed their own compliance. The code aims to “dispel this misunderstanding,” the statement added, that “unlike all other jurists in this country, [the justices] regard themselves as unrestricted by any ethics rules.”

“It is certainly significant that the court has finally adopted a code of conduct. ... It reflects that the public pressure and public attention about the court’s ethical shortcomings is having an impact,” says Alicia Bannon, director of the Judiciary Program at the Brennan Center for Justice. But “it was a real missed opportunity for the court to really get serious about ethics.”

What’s in the code?

The document features five canons of conduct for justices on and off the court, including recusal standards, and a commentary elaborating on the code. The code doesn’t appear to address the central concern many have with Supreme Court ethics rules: Enforcement is for the most part left to the justices themselves.

For example, a justice “should keep informed about [their] personal and fiduciary financial interests” and “make a reasonable effort to keep informed about the personal financial interests” of their spouse and children, the code states. Justices are supposed to seek guidance from the court’s Office of Legal Counsel and relevant judicial committees. There are no details on who or what would be making sure the justices make these efforts.

At times, broad and vague language leaves it unclear where the line is between proper and improper conduct. There are clear examples of when a justice should recuse themselves from a case, for example, such as when someone a justice or their spouse knows is a party to the case or representing a party in the case. But a justice should also recuse themselves “in a proceeding in which the Justice’s impartiality might reasonably be questioned,” the code states.

Lower court judges, meanwhile, must follow mandatory recusal rules. Parties in lower courts can also file a motion asking for a certain judge to recuse themselves.

The general language in the code “does suggest [the justices] consider this [as] aspirational, as opposed to binding,” says Carolyn Shapiro, co-director of the Institute on the Supreme Court of the United States at the University of Chicago-Kent College of Law.

“There’s an extraordinary amount of discretion involved in applying these standards,” she adds. But “I’m not sure it would be possible to write standards that don’t have that as an element.”

Does the high court need more leeway?

In a summary, the justices claim that the Supreme Court needs to have more relaxed ethical rules than lower courts do. Most appeals courts are made up of at least 11 judges, for example, whereas there are only nine justices.

“The loss of even one Justice may undermine the ‘fruitful interchange of minds which is indispensable’ to the Court’s decision-making process,” the summary reads. “Much can be lost when even one Justice does not participate in a particular case.”

The document does acknowledge that more may need to be done to firm up the new code of conduct. The court “will assess whether it needs additional resources,” it says. And the Office of Legal Counsel will “maintain specific guidance [for] recurring ethics and financial disclosure issues,” as well as provide annual training to justices and their staff.

The fact the document exists at all is noteworthy. As the high court admits, many of the rules aren’t new, but they have never been formally articulated for the public. That by itself is worthy of recognition, experts say, but the code’s deficiencies are as well.

“If you accept that the Supreme Court is differently situated than lower court judges, it makes it even more important to implement ethical safeguards on the front end to make sure ethical issues don’t emerge in the first place,” says Ms. Bannon of the Brennan Center for Justice.

“The North Star needs to be: Are you preserving public confidence in the judicial system?” she adds. “Here there was a missed opportunity to really put in place safeguards that avoid putting justices in situations in the first instance that would undermine that confidence.”