On Monday, the Supreme Court released a new “code of conduct” laying out ethical principles that the justices claim they have always adhered to — and arguing that the only reason such a code is necessary is because the Court’s critics don’t understand how things actually work.
It’s the first time in its history that the Court has published a formal ethics code — but the introduction to this particular code makes it clear that the justices did so only reluctantly, and that they don’t actually intend for anything to change.
“For the most part these rules and principles are not new,” the introduction to the code claims, adding that “the absence of a Code ... has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.” The new code was created “to dispel” this supposed “misunderstanding,” the justices write, and it “largely represents a codification of principles that we have long regarded as governing our conduct.”
The code, in other words, codifies the same rules that Justice Clarence Thomas followed when he spent nine days vacationing on Republican billionaire Harlan Crow’s superyacht — a trip which “could have exceeded $500,000” in value, according to ProPublica. The code also locks in place the same rules Thomas followed during his frequent summer trips to Crow’s private resort in the Adirondacks. The code “represents a codification of principles” that Thomas followed when he bought a $267,230 RV that was underwritten by Anthony Welters, another of the many wealthy individuals who have lavished gifts on Thomas since he joined the Court.
According to ProPublica, these gifts include:
At least 38 destination vacations, including a previously unreported voyage on a yacht around the Bahamas; 26 private jet flights, plus an additional eight by helicopter; a dozen VIP passes to professional and college sporting events, typically perched in the skybox; two stays at luxury resorts in Florida and Jamaica; and one standing invitation to an uber-exclusive golf club overlooking the Atlantic coast.
The new code also seeks to “dispel” any impression that the justices “regard themselves as unrestricted by any ethics rules,” which may have been created when Justice Samuel Alito accepted a $100,000 private jet flight to Alaska from Republican billionaire Paul Singer, where Alito stayed in a fishing lodge that ordinarily charges more than $1,000 a day to guests, and where Alito was reportedly served wine that costs more than $1,000 a bottle.
The new code, which, again, by its own explicit terms largely seeks to put in writing the same rules that these justices followed when they accepted luxurious gifts from major Republican Party donors, is also almost entirely unenforceable. If a litigant, or one of the more than 300 million Americans governed by the Supreme Court, believes that one of the justices is violating the newly written-down rules, there is no mechanism to enforce those rules against a justice.
Indeed, the code is sometimes quite explicit about the fact that most of it has no enforcement mechanism. While it contains about three pages of rules governing when a justice must recuse themselves from a case, for example, an official commentary attached to the code states that “individual Justices, rather than the Court, decide recusal issues.” So if a justice decides to hear a case that the code says they should not hear, nothing happens because each individual justice has the final word on whether they must step aside from a case.
All nine of the justices, who signed their names to this code, should be ashamed of themselves. The new code imposes no meaningful obligations on the justices. It explicitly disclaims any desire to do so. It accuses the Court’s critics of “misunderstanding” the justices’ past behavior, when it really isn’t hard to understand the ethical implications of taking a $500,000 gift from a major political donor.
And the new rules do nothing whatsoever to limit Thomas’s corrupt behavior.
So what does the new code actually say?
The 15-page document the Supreme Court released on Monday has three parts: The brief introductory paragraph, which states that “for the most part these rules and principles are not new”; about nine pages dedicated to the actual code of conduct; and then another five pages of “commentary,” which explain how the justices interpret these rules.
Much of the rules section of the new code uses language that is similar or identical to the language of the Code of Conduct for United States Judges, ethical rules that have long governed judges on federal district and appeals courts whose decisions are reviewed by the Supreme Court.
But, while there are superficial similarities between the rules governing lower court judges and the rules that the Supreme Court now says it will comply with, there’s a big difference between these two sets of rules: The ones governing lower courts actually have teeth.
As Chief Justice John Roberts wrote in 2011, the last time that Thomas’s penchant for accepting lavish gifts from Republican billionaires embarrassed the Court and forced Roberts to respond to calls for ethics reform, if a trial court judge refused to recuse from a case they are obligated to step away from, that “decision not to recuse is reviewable by a court of appeals, and a court of appeals judge’s decision not to recuse is reviewable by the Supreme Court.”
But “there is no higher court to review a Justice’s decision not to recuse in a particular case,” Roberts wrote at the time — and the new code does nothing to add accountability to justices who sit on cases they should not hear.
Worse, if you were handed a copy of the new code and its attached commentary, and were unfamiliar with the fact that this code arrives after seven months of painstaking reporting into Thomas’s corruption and his relationships with many wealthy Republicans who give him expensive gifts, you would have no idea that these scandals even exist.
The new rules contain only one provision limiting gift acceptance by the justices. And, while that provision appears on its face to impose fairly robust limits on the justices, the official commentary on the rules clarifies that this provision does not actually do anything to change the status quo.
Briefly, the new rules state that “a Justice should comply with the restrictions on acceptance of gifts and the prohibition on solicitation of gifts set forth in the Judicial Conference Regulations on Gifts now in effect.” If taken seriously, that would be a very significant restriction indeed, because the Judicial Conference Regulations on Gifts state that judges are “not permitted to accept a gift from anyone ... whose interests may be substantially affected by the performance or nonperformance of the [judge’s] official duties.”
The Supreme Court, which has the power to overrule any decision made by Congress or a presidential administration, is arguably the most powerful policymaking body in the United States. It routinely hands down decisions that impact millions of Americans — in its last two terms alone, the Court stripped student loan relief from millions of student borrowers, it abolished affirmative action at most universities, it set fire to countless gun regulations, and it stripped the constitutional right to an abortion from anyone with a uterus.
All Americans, in other words, have “interests” that “may be substantially affected” by the performance of a justice’s official duties. So, if the Court actually took its new rules seriously, no justice would be allowed to accept a gift from anyone in the country.
But it’s clear from the commentary on the rules that the justices don’t actually intend to comply with such a gift ban. To the contrary, that commentary states that the new rules requiring the justices to comply with the Judicial Conference’s gift regulations merely “articulate the practice formalized in 1991 of individual Justices following the financial disclosure requirements and limitations on gifts, outside earned income, outside employment, and honoraria.”
So, while a superficial read of the new rules might suggest that the justices have accepted strict new restrictions on their ability to accept gifts, the commentary on the rules tells a very different story. According to that commentary, the justices have changed nothing. They are simply following the same practice they’ve followed since 1991, and Thomas may continue to treat gifts from Harlan Crow and other Republican billionaires the same way he’s treated them during his entire tenure on the Supreme Court — which also began in 1991.
The Supreme Court’s new ethics code, in other words, is the equivalent of a biography of John Wilkes Booth that focuses entirely on his acting career without ever mentioning the fact that he murdered President Abraham Lincoln. It goes out of its way to avoid mentioning the very thing that has sparked such widespread public outrage against an unethical Supreme Court. And then it states explicitly, in the rules’ official commentary, that the Court is doing nothing whatsoever to change the lax gifting norms that allowed Thomas to accept corrupt gifts over and over again.
It’s not hard to write an ethics code that actually works
It’s worth noting that the new code does contain fairly detailed rules governing exactly one thing: getting paid to teach at a university or law school.
According to the rules’ commentary, “a Justice may not accept compensation for an appearance or a speech,” but they may be paid for “teaching a course of study at an accredited educational institution or participating in an educational program of any duration that is sponsored by such an institution and is part of its educational offering.”
The amount that a justice may be paid for moonlighting as a professor is capped at roughly $30,000 per year. And, unlike other parts of the new ethics code, the rules governing paid teaching gigs actually has an enforcement mechanism that calls for third-party review of the justices’ activity. According to the commentary, “Associate Justices must receive prior approval from the Chief Justice to receive compensation for teaching; the Chief Justice must receive prior approval from the Court.”
There’s a straightforward explanation for why the Court has a real ethics code governing paid teaching gigs while the rest of its ethics rules are fluff and meaningless bluster. In 1969, Justice Abe Fortas resigned from the Supreme Court in disgrace after he accepted several dubious payments — including an arrangement where several clients at Fortas’s former law firm paid him $15,000 to teach at American University (about $130,000 in today’s dollars).
So the Court’s relatively strict rules governing paid teaching prevent a repeat of this particular scandal. The cap on payments ensure that justices do not pad their income too much with outside funds, while the requirement that at least one additional member of the Court review all paid university gigs helps screen out teaching assignments that may be corruptly funded.
Similarly, it would not have been hard to write ethics rules that prevent Thomas or Alito’s particular brand of corruption: accepting lavish vacations or other gifts from wealthy benefactors. The United States Senate, for example, generally prohibits members and staffers from accepting gifts valued at more than $50, and they place even stricter restrictions on gifts from lobbyists or foreign agents. The House imposes similar restrictions on its members and their staff.
Simply put, the Supreme Court knows how to write an effective ethics rule when it chooses to do so. And it has plenty of models it could have relied on from other powerful American institutions, which have already given serious thought to how to write a rule that prevents wealthy donors from lavishing gifts upon top policymaking officials. It simply chose not to do so.
The Supreme Court has no credibility to speak about ethics
The Roberts Court, of course, frequently opines on what sort of relationship government officials should have with wealthy benefactors who seek to buy influence. And its previous proclamations on this subject should not give anyone more confidence in this Court’s ability to root out corruption than its new, toothless ethics code.
Consider, for example, the Court’s decision in Citizens United v. FEC (2010), which permitted corporations and unions to spend unlimited sums of money to influence elections. According to the five Republican-appointed justices who joined that decision, elected officials being unusually responsive to donors is actually a good thing:
Favoritism and influence are not ... avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.
So it’s not surprising that a Court that looks at multimillion-dollar checks being written to elect one official or another and shrugs it off with the phrase “democracy is premised on responsiveness,” may not have the most sophisticated ideas about what should be done when a Supreme Court justice routinely flies all over the globe at the expense of wealthy political donors.
This Supreme Court has long held people who believe that public officials should not be influenced by big donors in utter contempt. It’s not surprising that the Court’s new ethics rules display the same contempt for critics of the justices’ own corruption.