November 16, 2023

The Supreme Court Still Needs a Binding Code of Ethics

Russ Feingold President

This week, the Supreme Court released what it describes as a “Code of Conduct.” Glaringly absent from the code? Any enforcement mechanism. A code of conduct that cannot be enforced is a code of conduct that is optional. In other words, the Supreme Court still needs a binding code of ethics.

The justices state at the top of this new “code” 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.” Yes, the absence of a written code has contributed to this impression, but more importantly, the unethical behavior of certain justices has solidified that impression – and contributed to the public’s plummeting confidence in this institution. The public’s confidence will not be revived by a code of conduct that is optional. How is that any different from what we have now?

In its opening paragraph, the justices acknowledge that this code of conduct “largely represents a codification of principles that we have long regarded as governing our conduct.” Meaning, the code is merely a writing down of the same “principles” that didn’t stop Justices Thomas and Alito from accepting lavish gifts from Right-wing donors with interests before the Court and that didn’t require Justice Thomas to recuse himself in a case wherein his spouse was engaged in some of the underlying events. If the principles didn’t stop the unethical behavior before, why would we expect that merely jotting down the principles in writing will deter such behavior in the future?

Here is the bright spot from this week’s development. The justices have proven that they are not immune to public pressure. They in essence acknowledged that the Court is in the midst of a legitimacy crisis. The justices read the news. They know public confidence in this Court is at an all time low. They know momentum is growing for structural and non-structural Supreme Court reform. They know the Senate is taking seriously its responsibility to check and balance the Court. And they know something has to give.

The Court’s voluntary Code of Conduct is proof that we need to keep up the pressure. While encouraging that the Court admitted it has a problem, its proposed solution is lacking. The Court is in the midst of an existential legitimacy crisis and, this week, it simply proved what we have been saying all along, the Court cannot be entrusted to police itself when it comes to ethics. There must be a code of ethics that relies on something other than peer pressure. There must be a system in place whereby ethics violations can be investigated and ethics rules can be enforced. It is now all too clear, if it wasn’t before, that to achieve such a code, Congress will have to require it.

We applaud the Senate Judiciary Committee for its continued investigation into the unethical behavior of certain justices and its continued consideration of Supreme Court reform. Our democracy rests on a system of checks and balances, whereby each branch, including the Supreme Court, is checked and balanced by the other branches. As we have said before, the Senate has not only the responsibility, but the obligation to check and balance the Court. This must include requiring the Court to establish a binding code of ethics.