Understanding the Supreme Court's New Code of Conduct

The Supreme Court recently announced a new code of conduct to address growing ethical concerns. This decision follows waves of criticism, primarily from reports about undisclosed gifts and unreported travels received by some justices.

Historical Breakdown of Supreme Court Appointments:

Digging into the historical landscape of U.S. Supreme Court justice appointments from 1936 to the present, it's noteworthy that both Republican and Democratic presidents have appointed the majority of the justices. In September 2021, there were nine sitting U.S. Supreme Court justices, five appointed by Republican and four by Democratic presidents. 

Four different presidents appointed six justices (Justice Clarence Thomas, Justice Stephen Breyer, Chief Justice John Roberts, Justice Samuel Alito, Justice Sonia Sotomayor, and Justice Elena Kagan) from 1991 to 2010.

Presidential appointees include George H. W. Bush, Bill Clinton, George W. Bush, and Barack Obama. President Donald Trump later appointed three additional justices (Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett) between 2017 and 2020. 

While these statistics offer a snapshot of the current Supreme Court composition, tracking appointments back to 1936 reveals the intricate balance of Republican and Democratic influence on the high court over the decades.

An unresolved issue?

Despite the Supreme Court's efforts, critics argue that since the new code doesn't disclose a precise enforcement mechanism, it falls short of truly addressing the ethical concerns raised. Critics argue that, due to the high-stakes nature of their roles, justices must be held accountable for any ethical lapses.

Earlier this year, scrutiny was magnified when ProPublica reported Justice Clarence Thomas to have accepted luxury trips from Republican mega-donor Harlan Crow without reflecting on his annual financial disclosure. This and other reported financial links have heightened public interest and led to outcries for accountability from Supreme Court justices.

Other financial ties between the conservative justices were later reported, including that Crow bought the Georgia property where Thomas' mother still lives rent-free. Thomas has said lawyers advised him that he did not have to include the travel expenses on his disclosures.

ProPublica later reported that Justice Samuel Alito had failed to disclose a luxury Alaskan fishing trip with billionaire Paul Singer, whose hedge fund had business before the court.

The code's details and intent:

This 14-page code of conduct dispels misunderstanding and insists that the court's justices are not immune to ethical rules. The Supreme Court has stated that this recent move is not to be underestimated, as this action intends to instill a greater sense of judicial accountability and transparency.

What does the code say?

The self-set code focuses on five main canons of conduct, directing each justice to:

• Uphold the integrity and independence of the judiciary
• Avoid impropriety and the appearance of impropriety in all activities
• Perform their duties fairly and impartially
• Perform their duties diligently
• Engage in outside activities consistent with the obligations of the judicial office
• Refrain from political activity

The code's components:

In releasing the complete code of ethics, the justices sought to downplay its significance, writing in a statement that it "largely represents a codification of principles that we have long regarded as governing our conduct." Still, they acknowledged 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."

Democrat's response:

There's no straightforward response as to whether this new code of conduct will appease Senate Democrats, who previously urged the court for ethics reform and began an investigation.

Democrats and some outside advocates have spent months backing legislation to impose recusal standards, an ethics complaint review process, and more changes to the Supreme Court code of ethics — none included in the court's 14-page code.

Sen. Sheldon Whitehouse, D-R.I., the leading Senate backer of Supreme Court ethics legislation, called the code "a chink in their armour of indifference" but said it had no teeth because it lacks enforcement provisions and only says justices "should" act a certain way.

The rising political tension and debate over the Supreme Court's accountability and transparency will define issues in the coming months.

Republicans' response: 

Republicans have called the bill an attack on the Supreme Court by Democrats unhappy with how the conservative-controlled high court has ruled. They also largely reacted with praise following the release of the ethics code on Monday.

Judiciary Committee ranking member Sen. Lindsey Graham, R-S.C., called it a "good step" for the court. Sen. John Cornyn, R-Texas, a member of the Senate Judiciary Committee, praised the code and noted the court's status as an independent branch of government.

"It's a closed book as far as I'm concerned," Cornyn said.

He and other Republicans said Congress should not have a role in policing the court's ethics. He characterized the effort by Democrats to have lower court judges push forward on subpoenas this week as an "intimidation tactic" meant to target conservative members of the court.

Recusal and more

The sponsor of the House version of the bill, Rep. Hank Johnson, D-Ga., called the code published Monday a "public relations response" to the pressure the court has faced. He said he and other Democrats would continue to push for legislation like his that has enforcement provisions.

"We have simply a reversion to the status quo: that each justice is now the judge and juror in their particular case. So they get to determine how and if they follow their own rules of conduct, and the public is left out," Johnson said.

Johnson said only a code that addresses ethics problems like undisclosed gifts, private jet travel, private interests, and concerns around influence peddling would satisfy critics.

What have the court's critics said about the ethics code?

Sen. Dick Durbin, chair of the Senate Judiciary Committee, said the new rules "fall short of what we could and should expect when a Supreme Court issues a code of conduct." The court's new code influencing official conduct "does not appear to contain any meaningful enforcement mechanism to hold justices accountable for code violations.”

Public demand

In conclusion, while the adoption of the Code of Conduct by the Supreme Court represents a significant step towards addressing the ethics concerns of other federal judges, questions remain regarding enforcement, leading to mixed reactions. With such debates underway, this topic will continue to attract public and political attention. Stay tuned for more updates on this ongoing issue.