New Supreme Court ethics code recognizes problem but fails to solve it

The supreme court building

The Freedom From Religion Foundation is disappointed that the Supreme Court, after witnessing repeated scandals involving unreported gifts to justices and other reprehensible conduct, has belatedly adopted an ethics code that has no teeth and sets an even lower bar than the existing code of ethics for lower court judges.

In an unsigned statement accompanying the new code’s release, the court wrote that it “largely represents a codification of principles that we have long regarded as governing our conduct.” The code largely reflects the code of ethical conduct for lower court federal judges, but there are some key differences strongly suggesting the court’s intent is to placate those demanding accountability without actually changing any of the scrutinized conduct.

Clever lawyers know that adding or subtracting one carefully chosen word can create a huge change. That’s the case in Canon 2(B) of the new ethics rules, which states that a justice “should neither knowingly lend the prestige of the judicial office to advance the private interests of the justice or others nor knowingly convey or permit others to convey the impression that they are in a special position to influence the justice.” This language is taken verbatim from Canon 2(B) of the judicial code of ethics for lower court judges, except with the addition of twice inserting the word “knowingly,” meaning that Supreme Court justices can plead ignorance whereas lower judges cannot.

This sets a lower bar for Supreme Court justices than other judges. Even if a justice knowingly violates Canon 2(B), the justice can claim ignorance. One commentator has aptly referred to this as the “Ginni Thomas clause.”

Similarly, the code states that justices “should not knowingly be a speaker, a guest of honor, or featured on the program” of fundraising events, effectively carving out events where wealthy donors can attend in order to influence justices in attendance. And, again, the word “knowingly” works like a get-out-of-jail-free card.

One disturbing trend of the current high court, as well as the federal judiciary generally, is the outsized influence of the Federalist Society. When Donald Trump became president, he notoriously allowed the group to prescreen judicial nominees for him. With an open mission to influence the ideology of the judiciary in a particular direction, Federalist Society events are seen by the public as supporting that ideology. It seems telling, then, that the new code instructs justices to consider whether speaking at a group’s event “would create an appearance of impropriety in the minds of reasonable members of the public,” then immediately adds that,”[e]xcept in unusual circumstances,” there is no appearance when speaking to a group of students “or any other group associated with an educational institution.”

Most importantly, the new code contains no enforcement mechanism. The code’s commentary emphasizes that it consists of “broadly worded general principles informing conduct, rather than specific rules requiring no exercise of judgment or discretion.” In other words, the justices are able to make up their own rules — just as they have in the past. And we see where that has led.

“This was the very least the high court could do after mounting reports of ethics scandals,” says FFRF Legal Director Rebecca Markert. “There is much more yet to be done in order to regain public trust and rebuild the integrity of the institution at the Supreme Court, such as an enforcement mechanism holding justices to account. FFRF will continue to fight for true reform that will protect civil liberties for all.”

While the code is lackluster at best, FFRF points out that the court obviously felt the need to act due to intensifying public scrutiny. The efforts of FFRF members, along with many other concerned Americans, led to official action. Now it’s time to hold the court accountable for the code it claims to be considering — and to push for more meaningful changes.

The Freedom From Religion Foundation is a national nonprofit organization with 40,000 members across the country. It protects the constitutional separation between state and church and educates about nontheism.

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