A NEW ETHICS CODE: WILL IT HELP?

Recently, scandals have rocked the Supreme Court of the United States. Uber-wealthy benefactors have given some Justices trips on private jets to exclusive private resorts, have paid the tuition at expensive private schools for Justices’ children, have provided membership at elite clubs, and have even vacationed with Justices. These perks were not reported by the receiving Justices on financial disclosure forms. Even worse, business interests of the benefactors were later before the Court and the Justices who received the gifts did not recuse themselves from those cases.  

These apparent conflicts of interest have led many people—both in the legal community and outside of it—to advocate for an ethical code that applies to the Supreme Court. Judges on lower federal courts are subject to the Judicial Conduct and Disability Act, a federal law that allows people to file ethics complaints and sets out a mechanism for their review. The penalties include public censures and reprimands. It does not apply to Supreme Court justices.

Reporting requirements are a different matter. An average federal employee cannot accept any gift from any person who “[c]onducts activities regulated by the employee’s agency” or who “[h]as interests that may be substantially affected by the performance or nonperformance of the employee’s official duties.” Federal employees cannot accept gifts valued at more than $50 per year. Members of Congress and their staffs are similarly prohibited from accepting gifts from anyone who is not a family member or close personal friend. Even so, members and congressional employees cannot accept more than $100 in gifts annually, and they must seek approval from the House or Senate Ethics Committee to accept gifts from personal friends exceeding $250 in value. Even the president and his family are required to publicly disclose gifts exceeding a certain amount. These requirements apply to the Justices on the Supreme Court, but there is no enforcement mechanism and no higher court to review a decision regarding compliance.

HOW THE CODE AFFECTS RECUSALS

“Individual justices, rather than the court, decide recusal issues.”

The language the court issued weakens the federal recusal statute, 28 U.S. Code 455, which requires: “Any justice … shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned;” the new code adopted by the Court replaced “shall” with “should” making compliance voluntary rather than mandatory. This theme applies throughout the non-binding code: It uses the word “should” 51 times, while words such as “shall,” “must,” and “may not” appear only sparingly in the court’s commentary on the code. Further, the Supreme Court’s commentary specifically allows individual justices to continue determining any decisions to recuse themselves from cases, stating that they, “rather than the Court, decide recusal issues.” 

PUBLIC OPINION

The announcement on November 13, 2023 by Chief Justice John Roberts that the Court was adopting a Code of Conduct was an attempt by the Supreme Court to quiet the growing chorus of complaints about the close ties between some Justices and wealthy donors, and the failure by those same Justices to report the gifts that they have received from the donors. In recent years, the public’s view of the highest court in the land has taken a severe hit. According to Pew Research, following a series of high-profile rulings addressing such issues as affirmative action, LGBTQ rights and student loans, the share of Americans with a favorable opinion of the U.S. Supreme Court has declined to its lowest point in public opinion surveys dating to 1987. Fewer than half of Americans (44%) now express a favorable opinion of the court, while a narrow majority (54%) have an unfavorable view, according to a new Pew Research Center survey.

Whether the adoption of the new Code of Conduct will result in any changes of behavior, and concomitantly any change in the public’s favorable impression of the Court, remains to be seen. Without an external enforcement mechanism, many experts are not optimistic. The court issued a 14-page document that included five canons of conduct on issues such as when justices should recuse themselves and what kind of outside activities they can engage in. Among other things, the code requires justices to "uphold the integrity and independence of the judiciary" and "avoid impropriety and the appearance of impropriety in all activities.” But the Justices themselves decide what would and would not result in impropriety or the appearance of it.

CONGRESS v. THE SUPREME COURT

Some experts have suggested that federal legislation could provide the missing enforcement mechanism. Aside from the difficulties in getting such legislation passed in the current congressional environment, there is also the issue of whether Congress has the legal authority to regulate the Court. At least one Justice, Justice Alito, has publicly questioned whether Congress has the authority, citing the Constitution’s Separation of Powers.

CONTACT YOUR ATTORNEY

If you or someone you know is involved in an accident, contact Dave Thomas at The Thomas Law Firm for a free evaluation regarding your legal rights.