Supreme Court's Toothless New Ethics Standards Are a Sham. Congress Must Act.

By Daily Editorials

November 27, 2023 6 min read

The verdict is in on the U.S. Supreme Court's new standards of ethical conduct released last week: Court watchers in the media and elsewhere have mostly declared them weak and incomplete but better than nothing.

We have to disagree. This cynical ploy by the court to get everyone to just shut up about its blatant ethical lapses, already — while not actually doing anything concrete to address those lapses — is in fact worse than nothing.

That's because the new "rules" (we use that word loosely) will give the justices undeserved cover from criticism without offering any enforcement mechanism whatsoever. Worse, they completely ignore the towering imperative of forcing recusal in cases where justices have obvious personal conflicts of interest.

It's clear from the court's patronizing, dismissive announcement of the new standards that the justices only instituted them so they could say they did, in hopes the national conversation just moves on. It shouldn't.

This court's near-record-low public approval ratings these days (they've hovered around 40% for the past few years) is likely the result of several factors.

The court's transparently partisan right-wing political agenda — which has led it to concoct convoluted legal theories designed to reach predetermined conclusions on abortion, guns and more — is disqualifying in itself to many Americans.

Others haven't forgotten that the current conservative majority was installed in part by Kentucky Republican Sen. Mitch McConnell's underhanded manipulation of the appointment process when he led the Senate under former President Donald Trump.

For such an ideologically compromised court to cling to any legitimacy at all, its members' behavior on nut-and-bolts ethics issues, at least, must be above reproach. But on that front, too, this court has failed.

As the world recently learned via ProPublica and other media, Justice Clarence Thomas has spent decades accepting (and failing to disclose) dozens of luxury vacations provided by well-connected billionaires, in addition to boarding school expenses for a close relative.

Justice Samuel Alito took a trip via private jet to an Alaskan fishing lodge, courtesy of a hedge fund mogul with business before the court. Then Alito penned an indignant essay in The Wall Street Journal slapping away any suggestion of impropriety.

Then there was the disclosure that Justice Sonia Sotomayor's tax-funded staff has routinely shilled her books to libraries and universities, activities that would be barred for anyone in government other than a Supreme Court justice.

Worse than any of this is the fact that the justices aren't required to recuse themselves from cases in which they have clear conflicts of interest, such as Alito's relationship with the above-mentioned hedge fund mogul. The new standards don't change that.

The most indefensible example of this problem is Thomas' stubborn refusal to recuse himself from cases related to the Jan. 6, 2021, attack on the Capitol by supporters of Trump. This despite the fact that Thomas' wife, right-wing activist Virginia "Ginni" Thomas, was a major player in White House efforts to spread the big lie of a stolen election that preceded the insurrection.

The reason the justices were able to get away with these and other ethical violations is that the judicial rules of conduct that apply to every other judge in the country don't apply to them. These nine jurists are, in essence, individually self-policing in their conduct. What could go wrong?

The new code of conduct, self-imposed by the court to head off brewing congressional action, would frown upon most of the recently revealed ethical lapses by the justices. But it wouldn't assertively prevent any of them because, astonishingly, the new standards include no enforcement mechanism.

What, then, is the point? It's to "dispel this misunderstanding" that the justices "regard themselves as unrestricted by any ethics rules," according to a statement signed by Chief Justice John Roberts and the eight associate justices.

That statement, typical of the arrogant tone Roberts and his colleagues have taken every time the ethics issue comes up, says all there is to say about how seriously the court views that issue: Not at all.

As Sen. Sheldon Whitehouse, D-R.I., aptly noted regarding the toothless new standards: "The honor system has not worked for members of the Roberts Court."

Whitehouse and others in Congress say they will continue pursuing binding ethics standards for the court.

Yes, that effort raises unsettling issues regarding the separation of powers between the legislative and judicial branches. But in releasing this insulting sham of a conduct code, the court has made clear it has no intention of cleaning its own ethical house. For the sake of the court's very legitimacy, someone has to do it.

REPRINTED FROM THE ST. LOUIS POST-DISPATCH

Photo credit: Sarah Penney at Unsplash

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