The Supreme Court’s new code of conduct raises questions about its effectiveness in addressing ethical breaches and protecting the Court’s reputation.
Last week, the Supreme Court unveiled its first-ever code of conduct for Justices, aiming to address recent public concerns about ethical breaches by some members of the Court. The code, however, has sparked controversy, with critics arguing that it serves as a defense brief rather than a genuine effort to prevent future ethical misconduct. This article will delve into the key provisions of the code, examine its implications, and explore whether it adequately addresses the concerns raised by the public.
A Defense Brief Disguised as a Code of Conduct
The code of conduct appears to be more of a defense brief than a set of rules designed to prevent ethical breaches. It denies any wrongdoing by the Justices and asserts that the reported ethical concerns are unfounded. By framing the code in this manner, the Court attempts to disabuse the public of its misperceptions regarding what constitutes ethical behavior for Supreme Court Justices.
Loopholes and Permissible Extrajudicial Activities
One of the contentious aspects of the code is Canon 4, which lists a range of “extrajudicial activities” that Justices may engage in without ethical qualms. The code provides permission for Justices to attend fundraising events of nonprofit organizations, as long as they are not featured prominently. This provision potentially justifies Justice Clarence Thomas’s attendance at multiple Koch-network fundraising events. The narrow definition of a “fundraising event” also raises questions about the ethical implications of Justices’ participation in various speaking engagements and events.
Close Associations with the Federalist Society
The code appears to condone Justices’ close associations with the Federalist Society, a conservative legal organization that wields significant influence on judicial appointments. By allowing Justices to participate in nonprofit organizations dedicated to the law and the administration of justice, the code effectively permits their involvement with the Federalist Society. This provision raises concerns about the potential bias and partisanship that may result from such associations.
Appearance of Impropriety and Speaking Engagements
The code warns Justices to consider whether their participation in certain events would create an appearance of impropriety. However, it establishes by fiat that speaking to groups associated with educational institutions, bar groups, religious groups, or non-partisan scholarly or cultural groups would not create such an appearance. This provision aims to shield Justices who speak at law schools or events organized by conservative-leaning institutions from criticism. It also allows Justices to engage in educational programs and speaking engagements that may generate significant revenue from book sales, even utilizing Court resources and staff.
Gifts and Recusal
The code does not introduce new rules regarding gifts but instead refers to the U.S. Judicial Conference’s regulations. Under these regulations, Justices can receive expensive gifts as long as they disclose them and the giver does not have business before the Court. This raises concerns about potential conflicts of interest, particularly regarding gifts received by Justice Clarence Thomas and his wife. The code also sets a high standard for recusal, requiring Justices to have direct knowledge of their spouse’s interest being substantially affected by a case’s outcome.
Conclusion: The Supreme Court’s new code of conduct for Justices has been met with skepticism and criticism. While it purports to address ethical concerns, it seems to provide justifications for past actions rather than preventing future breaches. The code’s provisions on extrajudicial activities, close associations, appearance of impropriety, gifts, and recusal raise questions about the Court’s commitment to maintaining the highest ethical standards. As the public continues to scrutinize the conduct of Supreme Court Justices, the effectiveness and integrity of this code will remain under scrutiny.
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