Supreme Court Adopts “Ethics Code” After Reports of Lavish Gifts and Travel
By: Nicholas Fortuna, November 28, 2023
The Supreme Court issued an ethics code on November 13 to stem criticism after a series of revelations about expensive gifts, luxury travel, payment of private school tuition, and a real property transaction benefiting some of the Justices. The code does not specify how the rules will be enforced or by whom.
For years there has been a push to impose an ethical code on Supreme Court Justices. It came to a head in April, when ProPublica, an independent, non-profit newsroom that produces investigative journalism in the public interest, chronicled years of private jet and yacht excursions paid by a high-profile Republican donor, Harlan Crow, for Justice Clarence Thomas. We learned that private school tuition for Justice Thomas’s grand nephew was paid for by Crow. He also purchased Justice Thomas’s mother’s house to facilitate his mother’s continued use of it.
After ProPublica’s revelations, Politico reported that Justice Neil Gorsuch did not identify the purchaser who bought a 40-acre plot of land co-owned by the Justice. The purchaser turned out to be a member of the law firm, Greenberg Traurig, that has had numerous cases before the court.
In June, ProPublica revealed that a luxury fishing expedition in Alaska for Justice Samuel Alito was paid for by Republican donors.
In July, The Associated Press uncovered that Justice Sonia Sotomayor allegedly used court staff to schedule speaking engagements related to her literary work to pitch sales of the Justice’s books.
It seems that the Supreme Court Justices confused the nomenclature “Supreme” to mean they are above it all, and they should not be bound by ethics, instead of what it is – the pragmatic end to legal proceedings. The Supreme Court is nothing more than the final stop in litigation. Once the case is decided by the Supreme Court, it is over. Nothing about the Supreme Court’s position as the last word on a case or controversy suggests that its decisions are of a particular quality or that the members of the Court are competent to fulfill the role they occupy. The arrogance of the Justices believing that they have supreme legal minds led to the situation we find ourselves in – Justices of the Supreme Court acting as if the rules should not apply to them.
The Justices’ comments prefacing the code make it clear that they think their actions should not be questioned. In fact, they state that the reason they are issuing this toothless code is because the perception is that the Justices of the Court “regard themselves as unrestricted by ethical rules.” Is it the public’s misunderstanding or the Justices sense that the rules don’t apply to them that explains accepting gifts, money for private school tuition, luxury travel, etc. from people with business or interests before the Court?
What the Justices did with the issuance of their “code of ethics” is an old trick practiced by industries that are trying to thwart governmental regulation: make a show that the industry will police themselves to convince government regulators that there is no need for regulation. Except in this case, there is no attempt by the Court to police the behavior of individual Justices. Cynically, the Justices issued a series of fuzzy rules that each Justice should consider. There is no enforcement mechanism or oversight. Nothing meaningful was enacted to curb the kinds of abuses recently reported. If someone with business before the court wants to buy a relative of a Justice a house, it seems that is okay.
The code does not place specific restrictions on gifts, travel, or real estate deals. It cautions justices that they should not, leaving open that they may, take part in activities that “detract from the dignity of the justice’s office,” “interfere with performance of the justice’s official duties,” “reflect adversely on the justice’s impartiality.” In other words, feel free to continue as before.
What is needed is real reform, an ethics code that will control the Justices’ behavior. Simply, bind the Justices to the code of ethics all lower court judges must follow. In addition, implement an approach to governing the Court that disabuses the Justices of their belief in their own supremacy, such as term limits, replacing Justices with conflicts on a particular case with a judge from the Court of Appeals, limiting the Court to an even number of Justices to encourage incremental decision making, and dividing the court evenly between liberal and conservative lawyers. Without real change, the Court will continue to see its reputation, legitimacy, and place within our Constitutional system eroded.