Supreme Court Adopts First-Ethics Code Amid Criticism, Yet Lacks Enforcement Mechanism

On Monday, the Supreme Court announced the adoption of its inaugural code of ethics in response to persistent scrutiny regarding undisclosed travel and gifts from affluent patrons to certain justices. However, this code is devoid of an enforcement mechanism.

The unanimous agreement by all nine justices to this policy seems to introduce no substantial new mandates and relies solely on the individual justice’s discretion for adherence.

The justices collectively maintain that they have consistently followed ethical guidelines, attributing the recent criticisms to misinterpretations of their conduct rather than actual ethical breaches by them.

In an unsigned statement accompanying the code, the justices expressed, “To clarify misconceptions that we, unlike our judicial counterparts nationwide, are exempt from any ethical standards, we issue this Code. It primarily codifies principles that have long been the basis of our conduct.”

Several stories have emerged challenging the ethical practices of the justices, notably focusing on Justice Clarence Thomas for not disclosing his travel and financial connections with affluent conservative donors like Harlan Crow and the Koch brothers. Justices Samuel Alito and Sonia Sotomayor have also faced scrutiny.

Justice Elena Kagan, in September, acknowledged internal disagreements over the ethics code’s content but did not detail them. Despite these disagreements, a consensus was reached on Monday without any public explanation.

Critics, particularly from liberal quarters, remain unconvinced, describing the code as more of a courteous suggestion than a binding, enforceable rule.

Senator Sheldon Whitehouse, D-R.I., vocal about the court’s ethical lapses, lauded the step but emphasized the need for a mechanism to investigate and enforce ethics violations. “The honor system has proven ineffective for the Roberts Court,” Whitehouse remarked.

Senator Whitehouse has proposed a court ethics code, passed by the Senate Judiciary Committee without Republican support, that would permit investigations by lower-court judges. Justices Amy Coney Barrett, Brett Kavanaugh, and Kagan have recently expressed support for an ethics code. In May, Chief Justice John Roberts hinted at the potential for the court to uphold higher ethical standards, though without specifics.

Public confidence in the court is at an all-time low, as revealed by a Gallup Poll just before the court’s new term.

Senator Dick Durbin, D-Ill., Chair of the Senate Judiciary Committee, suggested that the court could reduce criticism and Democratic efforts to enforce an ethics code by implementing its own policy.

Durbin’s committee, investigating the court’s ethics, plans to subpoena Crow and conservative activist Leonard Leo regarding their involvement in organizing and funding justices’ luxury travels.

Republicans argue that the Democratic push for an ethics code is a reaction to unfavorable rulings from the predominantly conservative court, including the reversal of the national right to abortion.

The Democratic-sponsored ethics bill, unlikely to pass in the Republican-dominated House or the divided Senate, mandates greater disclosure of justices’ potential conflicts of interest, reasons for non-recusal, and transparency about gifts.

Investigative reports by ProPublica and others have detailed the longstanding relationship between Crow and Thomas, including Crow’s funding of vacations, property purchases, and private schooling for a relative of Thomas. Reports also cover Alito’s Alaskan trip with a GOP donor and Sotomayor’s book promotion through college visits.

The court’s initial ethics response in spring, a statement by Roberts signed by all nine justices outlining their ethical practices, did not satisfy critics. This statement pledged additional transparency in recusal decisions, but inconsistencies remain.

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