The Supreme Court finally has a new formal ethics code! A written code, can you believe it!? Clearly, all our concerns are fully assuaged now, right?
OK, back to reality. Given what we know about this ultra-conservative-majority court, it’s probably no surprise to hear that this new ethics code isn’t actually super life-changing. The Supreme Court has been in shambles. Trump getting to appoint a full third of this court’s justices already didn’t sit right with my spirit. And before that, Senate then-Majority Leader Mitch McConnell refusing to let President Obama get his rightful court pick angered me to no end.
I do not understand how Republicans, who consistently lose the popular vote, have such dominance on the high court. It stinks of tyranny. Public opinion of the court has finally been catching up to its longstanding illegitimacy. That opinion has been plummeting, largely due to the overturning of Roe v. Wade last year, but also undoubtedly due to the many ethics scandals that have made headlines in recent months.
At the forefront of the alleged ethical misconduct is Clarence Thomas. For starters, he has quite an interesting (and undisclosed) relationship with and to the Koch Brothers. You know, the super mega-rich brothers who have been funding right-wing political organizations and more for years. He’s also been in the news this year thanks to ProPublica’s ongoing reporting on his close relationship with billionaire Harlan Crow. Basically, Thomas has been hanging with the mega-rich and cozying up to people who have massive political influence. And let’s not forget Thomas’ wife! Her connections to election deniers and Jan. 6 insurrectionists are troubling, to say the least.
I could go on and on about the scandals. But polls have shown that SCOTUS isn’t viewed too favorably these days. Earlier this year, according to a poll from NPR/PBS NewsHour/Marist, trust in this institution reached a 50-year low at sixty-two percent saying they have ‘not very much or no confidence’ in the court. Many have been wanting an ethics code for a while. We want those in charge of making huge decisions that can be held accountable, in some slightly meaningful way, right?
So does this new code do that? Maybe temper those expectations.
What does the new Supreme Court ethics code actually say?
The document is eight pages long, plus a brief introductory statement and five pages of “commentary.” This is the first formal code for the court but it doesn’t seem too revolutionary, sadly. Perhaps the biggest issue in all of this is that there is no real enforcement mechanism. One of the things I learned throughout my political science education was that laws are only useful if they can be enforced. These aren’t technically laws but if no one thinks there will be any accountability then what is the real deterrent for unethical behavior? Ok, this is getting philosophical, but we all see the point.
Many conservatives have been against even this vague and unenforceable code because they think it just pushes a narrative that harms the very right-wing court. Meanwhile, others of course think it doesn’t go far enough. As Jeff Hauser—the executive director of the Revolving Door Project, which focuses on the influence and connections corporate America has with the federal government—put it to Politico, “This unenforceable public relations document serves absolutely no purpose other than to permit the media to revert to pretending that our unaccountable and unethical Supreme Court retains legitimacy.”
The claim that this document serves “no purpose” is so striking and damning. It really does seem like this was just a way to get the scrutiny off of their backs. At the end of the day, all of the unelected justices on the court will remain and there’s likely nothing any of us can or will do about it. So what else does it say though, just for fun?
An interesting part of the code deals with spouses. We already discussed Ginni Thomas’ problematic political influence. Her anti-election ties were made more troubling since Thomas has had to rule on certain issues related to the 2020 election and subsequent actions. The code says justices should recuse themselves in situations where a spouse or minor child has financial or “any other interest that could be affected substantially by the outcome of the proceeding.” The contention seems to lie in how much justices must know and what effort they should put into knowing. I can see how this could be a large loophole.
The code also says that justices shouldn’t publicly comment on pending matters in the court. This seems pretty basic and fair. But there are concerns about what is a public comment. I am sure that infamous leak of the decision overturning Roe was at the forefront of their minds regarding this particular section. Though we still do not know what happened with the leak, the court wants to give the appearance that they aren’t trying to influence public opinion. A huge lingering question, relating back to enforcement, is about if Congress can essentially put any restraints on the court. Justice Kagan has said that Congress has used federal law before to set forth rules for SCOTUS. However, this new code doesn’t provide any way for Congress to be a sort-of “watchdog” when it comes to the Judicial branch at the highest level. This is mostly referring to financial dealings and having to report them. It basically just says that the justices agree to abide by the rules on disclosure. So the kids will run the school! Great!
When reading the actual document, I love (read: hate) that the intro explicitly says that these “rules” are mostly not new and don’t actually change anything. Essentially, they’re saying they think their behavior has been just fine and they’re putting all this to paper to clear up any “misunderstanding.” There are five “canons” in the document and I think #2 may be my favorite. It says, in part, that Justices should respect and abide by the law. I mean, talk about non-innovative language.
Canon 1b talks about influence, stating: “A Justice should not allow family, social, political, financial, or other relationships to influence official conduct or judgment.” That makes sense but … this is not reasonable. Justices are people and not robots and how can we possibly stop them from being influenced? And how would we know? It is, as always, up to them and only them to make that call.
Overall, I will try to remain hopeful that this will deter Justices from corrupt activities and indirectly influence their thinking on rulings. But will this make a huge difference? My objective side says probably not.
(featured image: Paul Morigi/Getty Images for Accountable.US)
