Supreme Court Adopts Code of Ethics Amid Scrutiny From Democrats

The justices, who have hinted at internal deliberations over an ethics code, last met on Nov. 9 in their private conference room at the court.
Supreme Court Adopts Code of Ethics Amid Scrutiny From Democrats
U.S. Supreme Court Justices pose for their official portrait at the Supreme Court in Washington on Oct. 7, 2022. (Alex Wong/Getty Images)
Sam Dorman

The U.S. Supreme Court has released its first-ever code of conduct as it faces greater scrutiny from Senate Democrats and calls for ethics reform.

Released on Nov. 13, the code touches on a long list of areas related to judicial ethics, including guidelines for recusal and disqualification in proceedings. Criteria surrounding financial, fiduciary, and other external activities were provided as well.

Senate Democrats have called for Justices Samuel Alito's and Clarence Thomas's recusal from recent cases. Associates of both justices have been the subject of potential subpoenas by the Senate Judiciary Committee, led by Sen. Dick Durbin (D-Ill.).

Each of the nine justices signed onto the code, which drew on the already existing Code of Conduct for U.S. Judges. The Court said that it already followed existing rules derived from historic practice and other sources, but 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."

"To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct," they added.

The justices, who have hinted at internal deliberations over an ethics code, last met on Nov. 9 in their private conference room at the Court.

The push for an ethics code was jump-started by a series of stories by the investigative news site ProPublica detailing the relationship between conservative donor Harlan Crow and Justice Thomas. ProPublica also reported on Justice Alito's Alaskan fishing trip with a Republican donor. The Associated Press reported that Justice Sonia Sotomayor, aided by her staff, has advanced sales of her books through college visits over the past decade.

Among other things, the code states: "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. A Justice should endeavor to prevent any member of the Justice’s family residing in the household from soliciting or accepting a gift except to the extent that a Justice would be permitted to do so by the Judicial Conference Gift Regulations. A 'member of the Justice’s family' means any relative of a Justice by blood, adoption, or marriage, or any person treated by a Justice as a member of the Justice’s family."

The code prompted criticism from some who argued that it lacks a sufficient enforcement mechanism.

“It doesn't go far enough,” left-leaning organization Common Cause posted on X, formerly known as Twitter. “We need Congress to enforce a strong and binding code of ethics to restore trust in this Court.”

Judicial Crisis Network President Carrie Severino, who also served as a clerk to Justice Thomas, questioned whether Senate Democrats would be satisfied by the Court's move.

“I doubt this Code will satisfy Senate Democrats and their liberal dark-money backers, as their campaign has never really been about ethics but rather intimidating a Court that it despises for being faithful to the Constitution,” she posted on X.

Mr. Durbin responded to the code of conduct by saying in part that it didn't go far enough but was a step in the right direction. Quoting the justices' statement that many of the rules weren't new, Mr. Durbin said on the Senate floor, "That's a problem because the Court's previous practices were plainly inadequate."

He added that the code "does not appear to contain any meaningful enforcement mechanism to hold justices accountable for any violations of the code. It also leaves a wide range of decisions up to the discretion of individual justices, including decisions on recusal from sitting on cases."

The Senate Judiciary Committee is set to vote later this week on issuing subpoenas to two Republican donors, Mr. Crow and Leonard Leo, who are connected to the Democrat-led probe into conservative Supreme Court justices.

The code of conduct comes after Justices Alito and Thomas released delayed financial statements. Justice Thomas’s included information about trips on Mr. Crow’s private jet.

Reporting from ProPublica prompted Justice Alito to pen a response in which he defended his decision to not recuse himself from cases tied to GOP donor Paul Singer, with whom he went on a fishing trip.

The Nov. 13 code states that a “Justice is presumed impartial and has an obligation to sit unless disqualified.”

It further states that “a Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”

Another section provides guidance on financial reporting, compensation, and reimbursement. “A Justice may accept reasonable compensation and reimbursement of expenses for permitted activities if the source of the payments doesn't give the appearance of influencing the Justice’s official duties or otherwise appear improper,” it reads.

“Expense reimbursement should be limited to the actual or reasonably estimated costs of travel, food, and lodging reasonably incurred by the Justice and, where appropriate to the occasion, by the Justice’s spouse or relative.”

The justices add that they “will continue to seek guidance from the Office of Legal Counsel and the staff of the relevant Judicial Conference committees, including the Committee on Financial Disclosure, which reviews each Justice’s annual filing for compliance with applicable laws and regulations.”

The Associated Press contributed to this report.
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