The Supreme Court's new "ethics code"- It's not us, it's you
When you believe you're above the rules, you can put forward a meaningless "ethics code" with no enforcement mechanism
The urge to save humanity is almost always only a false-face for the urge to rule it.
H.L. Mencken, Minority Report
It turns out that the nine justices of the Supreme Court AREN’T mere mortals like you or me. We must live by rules and adhere to ethical limits that have consequences should we overstep. Supreme Court justices, however, are subject to no such strictures, and the degree of corruption they can get away with is astonishing. Conservative justices Samuel Alito and Clarence Thomas have shown a particular affinity for helping themselves to the goodies offered by billionaire benefactors. Many of those benefactors have, unsurprisingly, later had business before the Court.
In virtually any other line of work, this open, “Look, Ma, no hands!!” corruption would be met with a demand to resign. But, since justices on the Supreme Court have lifetime sinecures, they can be removed from the bench only via resignation, death, impeachment, or nuclear annihilation.
Justices rarely resign, and even fewer have been impeached. Shaking a Supreme Court justice free from their lifetime perch has proven impossible. The Former Guy packed the Court to obtain a Conservative majority and overturn Roe v. Wade. Since then, the justices' corruption has become increasingly evident.
Conservatives on the Court and Republicans in Congress had been hoping that establishing a code of ethics would persuade Sen. Dick Durbin (D-IL), chairman of the Senate Judiciary Committee, to shelve his investigation of the Court. But, given the toothless nature of the code, that seems unlikely. Sen. Durbin is unlikely to be easily duped.
The new ethics code is 15 pages of fluff with little substance and no enforcement mechanism. It’s smoke and mirrors, intended to mollify critics while making little discernible difference in what individual justices can do.
The Supreme Court issued an ethics code on Monday after a series of revelations about undisclosed property deals and gifts intensified pressure on the justices to adopt one.
In a statement, the justices said they had established the 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.” Left unclear was how the rules would be enforced, and the court said that it was still studying how any code would be put into effect.
“For the most part these rules and principles are not new,” the court said, adding that “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.”
Revelations of lavish vacations and high-end gifts have cast a light on how few ethics rules bind the justices, but under the new code, it remains unclear which of those activities would violate the rules — and who would decide.
The public perception of the Supreme Court is lower than a snake’s belly, and it doesn’t require a Ph.D. in rocket surgery to understand why. A court the public had once believed to be above partisanship is now wallowing in it. With a 6-3 Conservative majority, the Federalist Society now believes it’s on its way to controlling the country.
And it may not be far wrong.
The text of the new ethics code mentions the word “should” 53 times. “Shall” appears not at all, meaning they have a document that’s little more than window dressing. It’s designed primarily to silence the Court’s critics, which appears increasingly unlikely as revelations of judicial excesses continue to come to light.
The code, laid out over nine pages, does not place specific restrictions on gifts, travel or real estate deals. But it does caution the justices that they 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 rules also prohibit justices from allowing “family, social, political, financial or other relationships to influence official conduct or judgment.” The document cites examples of when justices must recuse themselves from a case, including when they have a “personal bias” or a financial interest.
In this case, “prohibit” doesn’t mean what one might think it means. The code contains no enforcement mechanism, meaning that even if a justice is found to have engaged in “prohibited” behavior, what of it? The code contains no consequences for conduct that crosses ethical or moral lines, so anything goes.
For example, Conservative Justice Clarence Thomas bought a $267,230 recreational vehicle, which a wealthy friend financed. A Senate inquiry discovered that Thomas’ friend then forgave much of the loan, which raises tax and ethical questions, none of which appear to have been addressed or resolved.
Justice Thomas’ membership in a very exclusive club gave him access to a wealthy circle of friends. That membership also gave his friends access to the Supreme Court.
Book deals have also become very lucrative for Supreme Court Justices. The lack of transparency and clear guidelines surrounding these deals are a source of concern to some court watchers.
The Supreme Court’s adopting of an ethics code was done under duress. It was not something the Justices felt was necessary, but public pressure dictated otherwise. The weak sauce that is the code represents the Court’s arrogant belief that the problem lies not with the Justices but with the public, who should spend less time obsessing over what individual Justices do with their free time.
[T]he court wouldn’t have adopted this code were it not for the drip, drip, drip of ethics scandals facing current members, Justice Clarence Thomas especially. As ProPublica reported, Republican megadonor Harlan Crow funded Thomas’ luxurious trips, tuition for his great-nephew and the purchase of Thomas’ mother’s house. Somewhat similarly, ProPublica reported that hedge fund billionaire Paul Singer helped fund a 2008 trip Justice Samuel Alito took to Alaska. A 2014 case, which Alito took part in, involved a dispute Singer’s hedge fund had with Argentina. And just this year, The Associated Press reported that Justice Sonia Sotomayor’s court staff essentially strong-armed schools and libraries into purchasing her book.
Let’s also be clear that the court didn’t want to do this. In a 158-word “statement of the court” that precedes its new code, the tone the court adopts right off the bat is that really this is all our fault. It’s our fault, the statement suggests, for being so confused as to think that because they’re the only nine federal judges in the country not subject to a binding code of conduct, some act as if they’re not subject to a binding code of conduct. That “statement of the court” is really just a defensive introduction to what follows. Within that 158-word section, the word “misunderstanding,” meaning our so-called misunderstanding, appears twice.
The problem is that the Justices aren’t subject to a binding code of conduct. There are expectations- sort of- but Justice Clarence Thomas’ behavior alone should be taken as an indication of what can happen when ethical considerations are largely ignored.
But, with Sen. Durbin investigating potential ethics violations among the Justices and members of the Court refusing requests to testify before his committee, the Court is placing itself above accountability. It’s making the case that no one- not the legal system, executive branch, or legislative branch- can touch them. The Supreme Court is an authority unto itself; it can do what it pleases and receive gifts from whomever it chooses.
In doing so, Chief Justice John Roberts has presided over a precipitous fall in public confidence regarding the Court’s impartiality. The public now understands that the Court exists to do the bidding of Conservative interests, many of which are identified and defined by the ultra-Conservative Federalist Society.
And, because The Former Guy succeeded in planting many of his loyalists in the federal judiciary during his Reign of Error ©, America will be dealing with the consequences of Conservative jurists for generations.
It is our fault, the statement says, for having the “misunderstanding” that Supreme Court justices “regard themselves as unrestricted by any ethics rules.” This appears to be a bit of a straw man. Because the justices were not, in fact, restricted by the same ethics rules as other federal judges. What the justices are really trying to argue is that it’s our fault for thinking they act like they’re not subject to a binding code of ethics. But here, again, reality gets in the way. The reality is that the justices have accepted, and at times have failed to disclose, gifts from donors, including at least one with business before the court. If the code of conduct applied to the justices, this behavior would raise serious concerns.
The court also went to pains to tell us that while we, the public, forced it into doing this, “for the most part these rules and principles are not new.” According to the court, it has always been guided by “the equivalent of common law ethics rules,” the code of conduct that applies to every other federal judge in this country, ethics advisory opinions and “historic practice.” In case we missed it the first time, the court then reminds us that the code is “largely” just a “codification of principles that we have long regarded as governing our conduct.”
Yeah, the surprise here is that the Court didn’t demand an apology from America for forcing them to issue a (toothless and meaningless) code of ethics.
But the Court seems to think it’s sufficient, and court watchers are…kind of optimistic?
Experts in legal ethics gave the document measured approval.
“This is a small but significant step in the right direction,” said Amanda Frost, a law professor at the University of Virginia. But she said she was troubled by the court’s failure to acknowledge past transgressions and the lack of a mechanism to enforce the new restrictions.
Daniel Epps, a law professor at Washington University in St. Louis, said the new code reflected, if nothing else, a recognition that the court had to act. “It’s good that they did this,” he said. “It’s good that they feel some obligation to respond to public criticism and act like they care.”
But, he added, “in terms of the content, it doesn’t seem to move the ball much.”
Honestly, it doesn’t move the ball any distance at all. There are things Justices “should” do, but nothing they “shall” do…and that’s no slight distinction. Virtually everything in the new code of ethics is predicated on the voluntary cooperation of the individual Justices.
And with no penalties or enforcement mechanism, it’s less an “ethics code” than “15 pages of pretty decent ideas.”
Although an ethics code binds judges in the lower federal courts, those rules have never governed the Supreme Court because of its special constitutional status. In a letter to lawmakers this spring, Chief Justice John G. Roberts Jr. said the court “takes guidance” from the ethics code for other federal judges and shared a statement signed by all nine justices that insisted that their existing rules were sufficient.
The main difference between the new code and the one that applies to other federal judges is in its treatment of recusal. In commentary the court issued along with the code, the justices said they must be wary of disqualifying themselves from cases because — unlike judges on lower courts — they cannot be replaced when they do.
The behavior of Justice Clarence Thomas alone would seem a convincing argument for a code of ethics that not only has teeth but actual, substantial penalties for corrupt, unethical behavior.
Over the years, Justice Thomas has (among other things)
participated in cases related to the January 6th insurrection despite his wife being tied to planning what took place on that day
accepted undisclosed luxury travel, much of it paid for by Texas billionaire Harlan Crown
accepted undisclosed gifts from wealthy and influential friends
accepted payment of private school tuition for a grandnephew Thomas was raising
accepted an undisclosed real estate deal that involved the purchase of Thomas’ mother’s home
Justice Thomas, unsurprisingly, has defended his decision not to report the proffered travel and gifts.
Of course, while Justice Thomas has been the most egregious offender, it should be noted he’s by no means the only one.
Other justices, including Samuel A. Alito Jr. and Neil M. Gorsuch, have also opted not to disclose their connections to wealthy people with close ties to the court. Justice Alito did not report a 2008 trip on the private jet of Paul E. Singer, a hedge fund billionaire who later had cases before the court. Justice Gorsuch did not disclose that the chief executive of a major law firm had bought a vacation property in Colorado that he partly owned.
The code bars the justices from speaking at events that promote commercial products or services, but it includes an exception for events to sell books by the justices. Book deals, some in the millions of dollars, can be highly lucrative for the justices, and in some instances, employees of the court have helped research and promote the books.
The rules also prohibit justices from being “a speaker, a guest of honor or featured on the program” of a “fund-raising event.” The code defines a fund-raising event as one in which the “proceeds from the event exceed its costs or if donations are solicited in connection with the event.”
Yesterday, I listened to court watcher Elie Mystal describe the new code of ethics on MSNBC as “a giant waste of time.” I found that description difficult to disagree with. It’s essentially 15 pages of mental masturbation couched in legalese- no penalties, no enforcement mechanisms. As Mystal said, it’s all “shoulds” (53 uses) and no “shalls.”
So, what are we left with? As a document intended to inspire public confidence, the new Supreme Court code of ethics is a poorly written public relations disaster. It’s smoke-and-mirrors, a transparent effort effort to distract and deflect. The code changes nothing and will accomplish nothing.
Other justices, including Samuel A. Alito Jr. and Neil M. Gorsuch, have opted not to disclose their connections to wealthy people with close ties to the Court. Justice Alito did not report a 2008 trip on the private jet of Paul E. Singer, a hedge fund billionaire who later had cases before the Court. Justice Gorsuch did not disclose that the chief executive of a major law firm had bought a vacation property in Colorado that he partly owned.
The code bars the justices from speaking at events that promote commercial products or services, but it includes an exception for events to sell books by the justices. Book deals, some in the millions of dollars, can be highly lucrative for the justices, and in some instances, employees of the court have helped research and promote the books.
The rules also prohibit justices from being “a speaker, a guest of honor or featured on the program” of a “fund-raising event.” The code defines a fund-raising event as one in which the “proceeds from the event exceed its costs or if donations are solicited in connection with the event.”
I don’t know how any observer can say this with a straight face. With no penalties or enforcement mechanism, what’s to stop Clarence Thomas from continuing precisely as he has for years? What will keep Samuel Alito, or anyone else on the Court, from playing fast and loose with ethics rules? They know they can do it because exposure has no consequences.
When unethical behavior is frowned upon at worst, why wouldn’t a Supreme Court Justice continue accepting gifts from wealthy benefactors? If or when they’re exposed, they can blow it off and consider it a perk or their position.
We should all have a job like that.
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