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Breaking down the new Supreme Court ethics code

The debate over the Supreme Court's recent ethics code centers on what it includes, excludes, and the motivations behind these decisions.
Breaking down the new Supreme Court ethics code
Posted at 6:28 PM, Nov 26, 2023
and last updated 2023-11-26 18:50:08-05

The Supreme Court is back in the headlines, but this time not for any landmark cases.

The court released its ethics code after months of public scrutiny and scandals around conflicts of interest.

The code is modeled after the one for lower court judges, but there are some key differences.

For example, there's some softer language, such as changing words like "shall disqualify" from cases they may be impartial to "should disqualify."

But the code does not have a process for holding justices accountable if they violate the rules.

Some critics argue this was the key point of contention in the recent scandals.

In early April, ProPublica first reported on Justice Clarence Thomas' relationship with GOP megadonor and billionaire Harold Crow.

The gifts from Crow, which included luxury trips, payments, and favors, were not disclosed. Federal law requires disclosure.

The Senate Judiciary Committee held a hearing to debate whether the Supreme Court needs ethics oversight.

The committee was divided along partisan lines. Democratic lawmakers called for independent oversight.

"The Supreme Court should step up and fix this themselves. For years, they've refused. And because the court will not act, Congress must,” said Sen. Dick Durbin.

While GOP lawmakers defended what they saw as an attack on the Republican-led court itself.

"This assault on Justice Thomas is well beyond ethics. It is about trying to delegitimize a conservative court that was appointed through the traditional process,” said Sen. Lindsey Graham.

Public trust in the Supreme Court is at an all-time low.

In a Pew Research study, only 16% of adults say that the justices do a good or excellent job of keeping their own politics out of their rulings.

Before the code was published in November, the Supreme Court was the only judicial body without an enforceable code of ethics.

The nonprofit watchdog group "Fix the Court" reported potential conflicts of interest with every sitting justice—and many former justices.

SEE MORE: Supreme Court to adopt code of ethics for first time

For example, Justice Sonia Sotomayor, nominated by President Barack Obama, didn't recuse herself from two cases involving Penguin Random House, which paid her millions in book contracts.

Or Justice Amy Coney Barrett, nominated by President Donald Trump, who failed to recuse herself from a case involving Americans for prosperity. That group spent more than a million dollars on an ad campaign urging senators to elect her.

Central to the debate is the question of whether a new ethics code will "de-legitimize" the court.

"The Chief Justice just explained how the Supreme Court differs from other federal courts and why it would be inappropriate for it simply to adopt the identical code of conduct applicable to all other federal judges. I agree with him about these points, but that doesn't mean that the court should have no formal code at all," said Jeremy Fogel,  Former Judge of the U. S. District Court for the Northern District of California.

Charles Geyh, a professor of law at Indian University, told Scripps News that these reforms would be a move against the existing 'culture' around the Supreme Court.

“I think there probably is a feeling within the supreme court that they are a unique kind of court, that they are not subject to the regulation of mere mortals,” said Geyh.

But proponents of more oversight argue ethics codes would restore public trust, not decrease it.

“And I will ask them to over 180 days come back to me with recommendations as to how to reform the court system, because it's getting out of whack,” said President Joe Biden.

In the spring of 2021, the Biden administration formed a commission on the Supreme Court with a bipartisan team of legal experts to assess possible reforms.

The report did suggest establishing a code of conduct, though the commission couldn't agree on other major changes, like adding justices or term limits.

In early April, Justice Thomas released a statement saying he was "advised" the gifts did not need to be disclosed.

And the code from November says justices should avoid "knowingly" appearing improper.

Whether this code of conduct will have a lasting impact on the Supreme Court justices remains to be seen.

But increased scrutiny of the justice system is sure to continue.


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