Following months of confirmed reporting that activist billionaires with business before the Supreme Court have pampered Justices Clarence Thomas and Samuel Alito with free, unreported, luxury vacations, the court recently issued a code of conduct that it asserts will prevent corruption at the court. Unfortunately, the document does nothing to address these ethical issues that have been following the justices and, in fact, appears to be an attempt to weaken federal law regarding judicial recusals. The Supreme Court ethics code adopts five canons of conduct that often track portions of the federal code of judicial conduct and federal law—but makes the provisions advisory rather than mandatory. In the end, this code is neither binding nor enforceable when there is an instance of impropriety among the justices.
The Supreme Court is the only federal entity with no enforceable ethical code of conduct.
The new code of conduct is weaker than existing federal law
With the release of this new ethics code, the justices give the appearance of attempting to ignore a federal law that applies to them by effectively making it discretionary. The language the court issued weakens the federal recusal statute, which requires, “Any justice … shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” by replacing “shall” with “should.” This theme applies throughout the nonbinding 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.” In effect, this new code does nothing to alleviate the ethics issues plaguing the court.
Rather, this supposed advancement in Supreme Court ethics creates a system of permission by omission. It does nothing to prevent billionaires from serving as patrons to Supreme Court justices, nor to prevent justices from maintaining close, personal ties to people and entities with business regularly before the court. By not strictly prohibiting these activities, the Supreme Court is giving the veneer of acceptability. Under this new purported code:
- Justice Thomas and Justice Alito could still be hosted on annual luxury vacations by billionaires such as Harlan Crow or Paul Singer.
- Justice Thomas and Justice Alito would not have to recuse themselves from matters before the court in which their billionaire patrons could receive millions in financial benefits, such as in Consumer Financial Protection Bureau v. Community Financial Services Association of America.
- Justice Thomas would not be required to recuse himself from matters involving right-wing judicial activist Leonard Leo, who previously ordered that tens of thousands of dollars be secretly directed to Thomas’ wife, Ginni, and who has attended lavish sponsored vacations with the Thomases.
- Neither Justice Thomas nor Justice Alito would be required to recuse themselves from matters involving Supreme Court litigator David Rivkin, who has accompanied Justice Alito on a luxury, billionaire-sponsored vacation, has interviewed Alito twice for The Wall Street Journal this year on court-related subjects, and represents Leo.
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Other government employees are bound by significantly stronger ethics codes
The Supreme Court’s new code of conduct is a free-for-all compared with the requirements binding other government employees, including judges on lower courts. For example, Justice Thomas’ vacation on Harlon Crow’s megayacht, valued at more than $500,000, and Justice Alito’s private jet to a luxury Alaskan fishing resort with Paul Singer, valued at more than $100,000, were both sponsored by men who stand to profit handsomely from the justices’ decisions. Contrary to the justices’ and Leonard Leo’s claims, the framers of statutory and ethical codes regulating public officials likely never considered that so-called hospitality gifts of this magnitude would ever fall within the exception of gifts from friends.
In stark contrast, 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.
Conclusion
The Supreme Court is the only federal entity with no enforceable ethical code of conduct. This recent announcement of a nonbinding ethical guidelines does nothing to change that. The justices should not be allowed to play by a different set of ethical rules than the rest of the federal government—especially when public trust in the institution is at an all-time low. The court is supposed to uphold the rule of law, not flout it.
Since Chief Justice John Roberts is seemingly trying to sweep the ongoing appearance of unethical improprieties by Supreme Court justices under the rug, Congress must act—and must act forcefully. The Senate should move forward with a floor vote to create an enforceable code of conduct for the Supreme Court through the Supreme Court Ethics, Recusal, and Transparency Act or any other legislative vehicle it deems appropriate. Since the justices have clearly failed to bind themselves to the most basic ethical standards, the time to defer to the institution to police itself must come to an end.