Following several months of ethical controversies, the Supreme Court has willingly produced a new code of conduct. However, the new document presents it as virtually voluntary for any justice to adhere to it.
The initial eye-catching aspect is the ostensible justification for composing the code. It appears to be unrelated to the fact that four out of the nine justices have been embroiled in financial misconduct.
While Chief Justice John Roberts’ wife amassed millions after his court appointment – a feat ascribed to his judicial influence by a whistleblower, Justice Neil Gorsuch neglected to report the sale of an odd parcel of land he had previously not succeeded in selling as a lower court judge. Justice Samuel Alito accepted, but did not publicly report, a private jet trip and an Alaskan vacation.
Similarly, the list of scandals involving Justice Clarence Thomas continues to grow: he has taken at least 38 vacations, 26 private jet flights, made several property deals, taken a sizable unrecompensed loan to buy a luxury coach, and even had his private school tuition paid by conservative donors.
Still, the court argues that it is not the justices’ behavior that is problematic. Instead, they believe that the public has misunderstood, thinking that the justices believe themselves to be unrestricted by ethical protocols. The court has issued this new conduct code to clarify this misunderstanding.
The court’s pronouncement reveals that there’s little novelty in the code, stating that it largely encapsulates principles that they’ve always considered governing their actions. The question then arises: will this code alter any misbehavior given its familiar contents?
Each provision in the code––which they claim is already being observed––seems to conflict with existing justices’ actions. Some of these acts have resulted in the lowest approval rating in court history.
This development has brought to light issues with justices eschewing ethical practices and the consequential tarnishing of the court’s legitimacy. When called upon to rectify past mistakes or questionable actions, the new code remains unclear, preserving the status quo of individual justice discretion.
This ambiguity is striking in instances such as Justice Thomas failing to recuse himself from cases concerning the 2020 election, despite his wife’s active role in efforts to overturn the election.
The crux of the recent controversies, the acceptance of gifts and neglect to report them, are remarkably mirrored in this code. The question we must grapple with, therefore, is this: Are these provisions sufficient deterrents for past observed misconduct or do they, in essence, mean nothing?
Ultimately, the hope is that we can arrive at a code of conduct that brings meaningful change to the actions of the justices.
Content for this article was contributed by Tonja Jacobi, a professor of law and Sam Nunn Chair in Ethics and Professionalism at Emory University School of Law.