The Supreme Court’s Code of Conduct: Impactful or Merely Performative?
Thirty-eight destination vacations and twenty-six private jet flights: that is what being a Supreme Court Justice will get you, at least if your name is Clarence Thomas [1]. By failing to disclose flights, expensive sports tickets, and luxury vacations gifted to him over his tenure, Thomas has engaged in a pattern of severe ethics violations. He is not the only Justice to come under fire for neglecting to disclose lavish gifts; these perks are among many bestowed upon Supreme Court Justices by donors who hope to gain access to their inner-circle and potentially attain political influence. Many critics of the Supreme Court have emphasized the intrinsically problematic nature of these ethics violations for opening the Court up to an increasing amount of public influence, especially by conservative groups like the Federalist Society. This organization, known for its conservative agenda promoting an originalist interpretation of the Constitution, has played a significant role in shaping the ideological composition of the Supreme Court to become its current conservative supermajority [2]. Ultimately, in response to severe public outrage over its various ethics violations, the Supreme Court enacted a Code of Conduct on November 13, 2023 [3]. However, due to its aspirational language and fuzzy enforcement, it has fallen far shorter than anticipated, probing numerous individuals to question whether the Code will effectively halt the Justices’ corrupt behavior. In this article, I will argue that although the Supreme Court’s recently adopted Code of Conduct is a step in the right direction, it does not provide sufficiently stringent guidance. Implementing a more rigid enforcement mechanism, alongside confronting the politicization of the Court, will be a more efficient means of combating ethical corruption.
The most evident flaw of the new Code is its utter lack of enforcement power. Laden with weak verbs like “should,” “should not,” and “endeavor to,” the Code of Conduct is, at its core, aspirational, with no binding obligatory measures in place [4]. Even in the first canon, the Code writes, “A Justice Should Uphold the Integrity and Independence of The Judiciary,” implying a mere recommendation instead of a firm requirement, which should be the standard for such a crucial ethical framework [5]. In many ways, the weak language fluttered throughout the Supreme Court’s Code of Conduct is a softened version of the one that governs the lower courts — originally adopted back in 1973 for federal judges. Unlike the repetition of “should” in the Justices’ Code of Conduct, “shall” is the “commanding word … that characterizes the lower courts’ Code of Conduct” [6]. Switching out weak verbs for terms carrying a connotation of obligation or mandate, such as “shall,” would instill the Justices with a greater sense of necessity in abiding by these ethical standards.
As it falls upon the Justices to decide whether they have breached the ethics regulations, even if the language is changed to a more binding term like “shall,” there is no way to ensure the Justices are holding themselves accountable. Given many of the Justices’ neglect to report countless donations and financial incentives, it is plausible that they will not hold themselves to the high standards that such inadequate enforcement power requires. Some judicial scholars have recommended third-party adjudication instead of self-reporting as a potential solution for the Code’s lack of enforcement. As ethics expert Jeremy Fogel outlines, “[j]ust as important as having the code is having some way to get impartial referees in terms of what you do … there needs to be some place they can go to get an impartial opinion” [7]. Fogel proposes these impartial actors to be composed of retired judges [8]. While this suggestion has merits considering that retired judges might be less likely to be preoccupied with advancing a political agenda, it might augment the existing concerns of politicization in the Court. Assembling a mixed third-party panel of legal scholars, retired judges, and perhaps even members of the public sector would allow for a broader range of perspectives and experiences to be brought into regulating ethics violations. Legal scholars would provide insight into legal precedent and theory, retired judges would offer expertise from their experiences on the bench, and members of the public sector would bring their perspectives about everyday life and the broader societal impact of ethics violations. Ultimately, using a diverse range of viewpoints and backgrounds serves as an essential tool to reduce bias, as it ensures that decisions are examined from a wide array of perspectives and are not monopolized by one predominant ideology. Utilizing third-party adjudication would help address another pitfall of the Code, which lies in its absence of disciplinary measures if a Justice fails to comply. While the Supreme Court Justices’ Code of Conduct is a modified, softened version of the Judges’ Code of Conduct, a key difference is their stance on disciplinary action: the Judges’ Code of Conduct outlines disciplinary action to take, even though it is somewhat vague. While the Judges’ Code of Conduct acknowledges that not every violation of the Code should lead to disciplinary action, “whether disciplinary action is appropriate, and the degree of discipline, should be determined through a reasonable application of the text” [9]. Other factors that should be considered, according to the Judges’ Code of Conduct, include “the seriousness of the improper activity, the intent of the judge, whether there is a pattern of improper activity, and the effect of the improper activity on others or on the judicial system” [10]. Additionally, some breaches of the Justices’ Code of Conduct may be grounds for discipline under a federal statute called the Judicial Conduct and Disability Act of 1980, which establishes a process by which anyone can file a complaint alleging a federal judge has engaged in “conduct prejudicial to the effective and expeditious administration of the business of the courts” [11]. However, this Act does not apply to Supreme Court Justices [12]. A first step in rectifying the lack of disciplinary action would be to incorporate the same language and framework as in the Judges’ Code of Conduct. As the ethics violations of the Supreme Court are quite grave, including even more comprehensive disciplinary measures would be beneficial. A third-party body of legal scholars and retired judges — as I proposed — could outline penalties for non-compliance, including fines, sanctions, and potentially even suspension if there is a pattern of repeated infractions. Utilizing a strike approach, beginning with relatively minor penalties like monetary fines, then increasing to suspension for multiple violations, would incentivize the Supreme Court Justices to adhere more closely to the Code of Conduct.
Although third-party adjudication provides a heightened, more comprehensive enforcement arm, it could introduce potential challenges about bias and outside political influences. Selecting third-party actors will not guarantee complete impartiality, as individuals will still carry their own perspectives and biases. Moreover, the selection process for these adjudicators might prove to be difficult, as there would have to be a standard for qualifications. However, opting for legal scholars specialized in the field of ethics and respected retired judges would assuage concerns regarding efficient qualifications. While bias is inherent to all individuals, even in artificial intelligence platforms, integrating legal scholars and judges from diverse political backgrounds would help alleviate partiality. Perhaps a solution is to acknowledge and address the bias head-on by incorporating two more left-leaning, two more right-leaning, and two centrist legal scholars and retired judges to ensure a more balanced representation of viewpoints to mitigate concerns about politicization. As there also might be reservations about the third-party adjudication instituting too harsh penalties, implementing an appeal system whereby Justices have the opportunity to challenge penalties they believe to be unjust or disproportionately severe, would guarantee increased accountability and fairness.
Though offering significant promise for tackling the weak enforcement in the Code, the third-party adjudication falls short of resolving the secondary critical concerns of polarization and outside influences within the court. With its provisions lacking the requisite specificity and enforcement mechanisms, the Code of Conduct is unable to effectively curtail the undue influence of financial and political factors on judicial decision-making. As the Code articulates, “[a] Justice should not allow family, social, political, financial, or other relationships to influence official conduct or judgment,” but it only loosely addresses the issue of donors wielding their money to sway judicial decisions [13]. It lacks the crucial specificity required to delineate the boundaries of these relationships and identify when they transgress into an encroachment on judicial independence. Providing precise definitions for each type of relationship, along with clear criteria and examples of when these relationships may “influence official conduct or judgment,” would make it easier to discern instances where these relationships evolve into ethics violations. In addition, implementing a more thorough framework on separating professional and personal relationships as well as creating clear boundaries between them would help alleviate the problem of outside influences infiltrating the Court.
Another significant flaw in the Code is where it lays out that a “Justice may attend a ‘fundraising event’ of law-related or other nonprofit organizations, but a Justice should not knowingly be a speaker, a guest of honor, or featured on the program of such an event” [14]. This carefully curated definition seems designed to exempt the annual Federalist Society gala, which the organization claims is not a fundraiser, but merely a “dinner” [15]. Moreover, the inclusion of “knowingly” is a subtle, yet monumental exception that creates a large loophole for the Justices to circumvent this rule [16]. Allowing Justices to attend law-related fundraising events opens the door to them publicly backing legal issues, even those that may appear on their docket. Furthermore, Justices may feel indebted to the organizations hosting the events, causing concerns about impartiality in their Court decision process. With these concerns in mind, it seems that a better solution would be to prohibit Justices from attending any events related to legal or political issues in an attempt to reduce the growing politicization in the Court.
Inherently, the need for reform within the Supreme Court is long overdue. With lifetime appointments and no elections, the Court operates in its own sphere, detached from many of the checks and balances that regulate the rest of the federal government. The Supreme Court has never been subject to all of the restrictions that govern the federal judiciary, and up until November, that included a Code of Conduct. With the enormous power entrusted to Supreme Court Justices, it is imperative that they be held to the same standards and limitations as other federal judges. While the Code of Conduct marked a positive first step in binding the Justices to the same regulations as their federal counterparts, it ultimately fell short in addressing the concerns of politicization and bias which prompted the initial ethical criticisms. Although I outlined a few foundational recommendations, it is clear that the reform needs to extend beyond mere updates to the existing Code of Conduct. A comprehensive review of the power structure of the court and its internal corruption is vital for the preservation of the United States Justice System and democracy.
Bibliography
[1] Kaplan, Joshua, Elliott, Justin, and Mierjeski, Alex. "Clarence Thomas and the Billionaire." ProPublica. last modified April 6, 2023. accessed March 13, 2024: https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow.
[2] Quince, Peggy and Rikleen, Lauren. "Federalist Society's Influence on Courts Is Bad for Democracy," Bloomberg Law, last modified November 8, 2022. accessed March 12, 2024: https://news.bloomberglaw.com/us-law-week/federalist-societys-influence-on-courts-is-bad-for-democracy.
[3] “Code of Conduct for United States Justices.” 2023. Accessed March 12, 2024: https://www.supremecourt.gov/about/Code-of-Conduct-for-Justices_November_13_2023.pdf
[4] Ibid.
[5] Ibid.
[6] Donegan, Moira. "The US Supreme Court's New 'Ethics Code' is an Embarrassment." The Guardian. November 15, 2023, accessed March 13, 2024: https://www.theguardian.com/commentisfree/2023/nov/15/supreme-court-ethics-code-embarrassment.
[7] Marcus, Ruth. "A Former Judge Explains How to Fix the Supreme Court's Ethics Problem," The Washington Post. July 17, 2023, accessed March 13, 2024: https://www-washingtonpost-com.ezp-prod1.hul.harvard.edu/opinions/2023/07/17/supreme-court-legal-ethics-jeremy-fogel/.
[8] Ibid.
[9] “Code of Conduct for United States Judges.” 2019. Accessed March 13, 2024: https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges
[10] Ibid.
[11] Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§ 351–364. Accessed March 14, 2024: https://www.uscourts.gov/judges-judgeships/judicial-conduct-disability.
[12] Lampe, Joanna R..“The Supreme Court Adopts a Code of Conduct” Congressional Research Service. 2023: https://crsreports.congress.gov/product/pdf/LSB/LSB11078#:~:text=On%20November%2013%2C%202023%2C%20the,Justices%27%20Code%20of%20Conduct)
[13] “Code of Conduct for United States Justices.” 2023. Accessed March 12, 2024: https://www.supremecourt.gov/about/Code-of-Conduct-for-Justices_November_13_2023.pdf
[14] Ibid.
[15] Mystal, Elie. "The Supreme Court's New Ethics Code Won't Stop the Corruption," The Nation, last modified November 14, 2023, accessed March 12, 2024: https://www.thenation.com/article/society/the-supreme-courts-new-ethics-code-wont-stop-the-luxury-vacations/.
[16] “Code of Conduct for United States Justices.” 2023. Accessed March 12, 2024: https://www.supremecourt.gov/about/Code-of-Conduct-for-Justices_November_13_2023.pdf.