Supreme Court unveils ethics code — but it’s vague and unenforceable, experts say

The United States Supreme Court (AP Photo/Haraz N. Ghanbari)

For the first time in history, the U.S. Supreme Court now has an official code of ethics — but it leaves much to be desired, experts and Democratic lawmakers said.

The high court unveiled an unprecedented 14-page code of conduct on Nov. 13, following a series of allegations that multiple justices acted unethically.

The document includes five rules governing the court’s independence, impartiality, impropriety and extrajudicial activities.

“The undersigned justices are promulgating this 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,” an accompanying statement signed by all nine justices said.

Vague and unenforceable

The code is unlikely to curtail unethical behavior as it’s imprecise and unenforceable, according to legal experts.

“The language in the Code of Conduct is exceedingly vague,” Paul Collins, a professor of legal studies at University of Massachusetts Amherst, told McClatchy News in an email.

“Most importantly, there appears to be no enforcement mechanism,” Collins said. “So, I read this code of conduct as an acknowledgement of the criticisms the Court is currently facing – which has resulted in historically low public approval – but not as a serious effort to address the ethical issues facing the Court.”

Multiple justices across the ideological spectrum have been accused of ethical lapses in recent years.

Most notably, Justice Clarence Thomas, a former President George H.W. Bush appointee, was accused of accepting expensive trips — including on private jets and superyachts — from Republican donors without disclosing them, according to ProPublica.

Thomas issued a statement in April saying that his travel — which he said he undertook with his “dearest friends” who had no business before the court — did not require disclosure.

The staff of Justice Sonia Sotomayor, a former President Barack Obama appointee, has also been accused of morally dubious behavior. She is alleged to have coaxed colleges hosting her for speaking engagements into purchasing copies of her books, according to the Associated Press.

“Given the very serious allegations of misconduct by some members of the Court who say they have been following existing ethical standards, it is evident that this Code is unlikely to result in any real behavioral change,” Collins said.

The lack of enforcement mechanism within the code is not surprising, Stephen Wermiel, a professor of practice of constitutional law at American University Washington College of Law, told McClatchy News in an email.

“There was no way the justices were going to give to someone outside the Court the power to discipline them,” Wermiel said. “They don’t want to police each other, and they certainly don’t want someone else to police them.”

Congressional action

Before the Supreme Court unveiled its code of conduct, the Senate Judiciary Committee drafted legislation that would impose an ironclad ethics code onto the court. Lower court judges already abide by similar ethical codes, according to the committee.

“We’ve been working for 11 years to encourage the Supreme Court to adopt a binding code of conduct for all its Justices, whether appointed by Democratic or Republican Presidents,” Sen. Dick Durbin, a Democrat from Illinois and chair of the committee, said in a July statement.

The court’s release of a new code of conduct shows no signs of stopping the committee’s efforts.

The code “falls short of what we could and should expect,” Durbin wrote on Twitter, now rebranded as X, hours after the court unveiled its new rules.

Sen. Richard Blumenthal, a Democrat from Connecticut and member of the committee, said the code “leaves unresolved key issues” in a statement on X, adding there’s “a lot of devil in unspecified details.”

But with a razor-thin majority in the Senate and a Republican-led House, it’s unlikely any congressional effort to foist an ethics rulebook onto the high court will be successful, Wermiel said.

Some Republicans have argued that accusations of unethical behavior on the court have disproportionately been lodged against conservative justices, NBC News reported. They’ve accused Democratic lawmakers of trying to “delegitimize” the high court because of its conservative majority.

“The Democrats on the Senate Judiciary Committee seem serious about trying to have a meaningful code of ethics for the Supreme Court,” Wermiel said. “But I also doubt they have the votes to get something all the way through the Congress.”

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