Topline
The Supreme Court has been actively discussing adopting a code of conduct for at least four years but so far can’t agree on how to do it—and it’s unclear when they will—the Washington Post reports, as pressure on the justices to follow a binding ethical code ramps up amid a series of controversies that have raised questions about potential conflicts of interest.
Supreme Court Chief Justice John Roberts and Justices Elena Kagan, Brett Kavanaugh, Amy Coney … [+]
Key Facts
The court “has failed to reach consensus” on a code of conduct despite years-long internal discussions about adopting one, the Post reports citing anonymous sources, though the topic remains “active.”
The court’s legal counsel presented a “working document” highlighting what issues such a code could address, the Post reports, but there’s no timeline on when the court could actually make a decision on whether or not to adopt an ethics code or what it would look like.
Supreme Court justices are not bound by the same code of conduct that lower federal judges are, which prohibits judges from “impropriety and the appearance of impropriety in all activities” and has a complaint process in place that can lead to punishment if the code is violated.
Justices have said they consult the federal judges’ code of conduct, but without being actually bound by one, there aren’t any consequences in place if they choose not to follow it.
Legal scholars, judicial ethics activists and lawmakers have all called on the court to adopt a code of conduct as a result, particularly as justices have come under fire for a series of controversies, particularly Justice Clarence Thomas’ wife’s conservative activism.
The Supreme Court has not yet responded to a request for comment on the Post report.
What To Watch For
Sen. Chris Murphy (D-Conn.) will re-introduce legislation Thursday to force Supreme Court justices to adopt a code of conduct, NBC News reports, which has more than 20 co-sponsors in the Senate. Previous bills pushing a code of conduct have failed, though a bill did pass the House last year before failing in the Senate. It’s not expected that this bill will find more success, given that Republicans now control the House and can block legislation in the Senate, and most recent ethical issues surrounding the Supreme Court have involved conservative-leaning justices.
Surprising Fact
The American Bar Association passed a resolution Monday that formally urges the Supreme Court to adopt a code of conduct, after more than two dozen legal ethics scholars previously wrote a letter in support of a code in March. “The Supreme Court should have a code of ethics. Exclamation point. The end,” Stephen Saltzburg, a law professor and former Justice Department official who has been affiliated with the conservative Federalist Society, said in a statement through the ABA.
Key Background
The Supreme Court has faced a series of ethical issues in recent months that have helped damage its public standing. Thomas’ wife Ginni Thomas has repeatedly come under fire amid reports showing how she aided efforts to overturn the 2020 presidential election—as her husband was hearing cases related to it—as well as associations with other right-leaning groups that have filed briefs with the court. Justice Samuel Alito has also raised concerns after a former anti-abortion rights leader wrote to the court that he knew the court’s 2014 decision in Burwell v. Hobby Lobby in advance, which he said he learned after two donors of his had dinner with Alito and his wife. Chief Justice John Roberts then faced scrutiny last week amid allegations that his wife, a legal recruiter, had earned millions of dollars in commissions after placing lawyers at firms that have business before the court. Conservative justices on the court have also raised eyebrows for repeatedly associating with GOP figures outside of the court, including appearing at Federalist Society events alongside politicians and attending parties alongside right-wing activists and attorneys. Justices have repeatedly maintained their innocence in the face of these allegations, denying any impropriety, and have stressed on multiple occasions that the court should not be seen as a partisan institution. The Supreme Court’s approval rating has taken a hit nevertheless, with polling showing Americans’ view of the court has hit record lows amid the controversies and the 6-3 conservative court’s rulings on political topics like abortion and gun control.
Further Reading
Supreme Court justices discussed, but did not agree on code of conduct (Washington Post)
Supreme Court justices face new pressure to adopt code of conduct (NBC News)
Chief Justice Roberts’ Wife Is Latest Supreme Court Spouse To Spark Ethics Concerns (Forbes)
Legal Scholars Push For Supreme Court Ethics Code As Gorsuch And Thomas Come Under Fire (Forbes)
Source: https://www.forbes.com/sites/alisondurkee/2023/02/09/supreme-court-justices-reportedly-cant-figure-out-how-to-adopt-ethics-code-amid-controversies/