The Supreme Court issued an ethics code on Monday after a series of revelations about undisclosed property deals and gifts intensified pressure on the justices to adopt one.
In a statement, the justices said they had established the code of conduct “to set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the members of the court.” Left unclear was how the rules would be enforced or by whom.
“For the most part these rules and principles are not new,” the court said, adding that “the absence of a code, however, 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 code, laid out over nine pages, does not place specific restrictions on gifts, travel or real estate deals. But it does caution the justices that they should not take part in outside activities that “detract from the dignity of the justice’s office,” “interfere with the performance of the justice’s official duties,” “reflect adversely on the justice’s impartiality” or “lead to frequent disqualification.”
The rules also prohibit justices from allowing “family, social, political, financial or other relationships to influence official conduct or judgment.” The document cites examples of when justices must recuse themselves from a case, including when they have a “personal bias” or a financial interest.
Experts in legal ethics gave the document measured approval.
“This is a small but significant step in the right direction,” said Amanda Frost, a law professor at the University of Virginia. But she said she was troubled by the court’s failure to acknowledge past transgressions and the lack of a mechanism to enforce the new restrictions.
Daniel Epps, a law professor at Washington University in St. Louis, said the new code reflected, if nothing else, a recognition that the court had to act. “It’s good that they did this,” he said. “It’s good that they feel some obligation to respond to public criticism and act like they care.”
But, he added, “in terms of the content, it doesn’t seem to move the ball much.”
Although judges in the lower federal courts are bound by an ethics code, the Supreme Court has never been governed by those rules because of its special constitutional status. In a letter to lawmakers this spring, Chief Justice John G. Roberts Jr. said the court “takes guidance” from the ethics code for other federal judges.
The main difference between the new code and the one that applies to other federal judges is in its treatment of recusal. In commentary the court issued along with the code, the justices said they must be wary of disqualifying themselves from cases because — unlike judges on lower courts — they cannot be replaced when they do.
“Because of the broad scope of the cases that come before the Supreme Court and the nationwide impact of its decisions,” the commentary said, the provision on recusal “should be construed narrowly.”
In recent months, a few justices, including Elena Kagan, Brett M. Kavanaugh and Amy Coney Barrett, publicly voiced support for the court to adopt an ethics policy. In wide-ranging remarks at Notre Dame Law School in September, before the court’s current term began, Justice Kagan said she believed an ethics code “would, I think, go far in persuading other people that we were adhering to the highest standards of conduct.”
In mid-October, Justice Barrett echoed that sentiment during an interview at the University of Minnesota, saying, “It would be a good idea for us to do it, particularly so that we can communicate to the public exactly what it is that we are doing in a clearer way.”
Debate over whether the court should be bound by an ethics code has persisted for years. During a 2019 budget hearing, Justice Kagan acknowledged that the court was considering such rules. She said the chief justice was “studying the question of whether to have a code of judicial conduct that’s applicable only to the United States Supreme Court.”
Calls for the court to adopt a code intensified after revelations that raised questions about potential conflicts of interest.
Justice Clarence Thomas, in particular, has faced scrutiny, in part over the political activities of his wife, Virginia Thomas, who worked to overturn the 2020 election results in the weeks leading up to the Capitol riot. Justice Thomas came under criticism when he continued to participate in cases related to the Jan. 6 attack or the outcome of the 2020 election.
In April, ProPublica documented the justice’s years of undisclosed luxury travel, including private jets and trips aboard a superyacht at the largess of a Texas real estate magnate and conservative donor, Harlan Crow.
Since then, several news organizations, including The New York Times, have revealed undisclosed gifts to the justice by powerful friends. Those include the payment of private school tuition for a grandnephew whom the justice was raising, the purchase of the justice’s mother’s home in an undisclosed real estate deal and an undisclosed loan for the purchase of Justice Thomas’s motor coach.
Justice Thomas has defended his decision not to report the travel and gifts.
Other justices, including Samuel A. Alito Jr. and Neil M. Gorsuch, have also faced allegations of failing to disclose their connections to wealthy people with close ties to the court. Justice Alito did not report a 2008 trip on the private jet of Paul Singer, a hedge fund billionaire who later had cases before the court. Justice Gorsuch did not disclose that the head of a major law firm had purchased a Colorado vacation property that he co-owned.
The code does not explicitly address these allegations.
The code bars the justices from speaking at events that promote commercial products or services, but it includes an exception for events to sell books by the justices. The justices’ book deals, some in the millions of dollars, have come under scrutiny in recent months.
It also prohibits justices from being “a speaker, a guest of honor, or featured on the program” of a “fund-raising event.” The code defines a fund-raising event as one in which the “proceeds from the event exceed its costs or if donations are solicited in connection with the event.”
In all, said James Sample, a law professor at Hofstra University, the new code is a modest improvement.
“Will this code of conduct solve the problems?” he asked. “No. There will certainly be questions as to enforcement. There will be questions as to details, and you can quibble over certain of the provisions. But this is a significant step.”
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