The Supreme Court issued an ethics code this week – unlike lower courts, the highest court in the land previously did not have formal rules in place governing justices.
The move came after mounting public pressure in the wake of revelations about undisclosed property deals and gifts to some of the justices. Among the more prominent examples, Justice Clarence Thomas received significant gifts from Texas billionaire Harlan Crow.
Milan Markovic, a professor of law at Texas A&M University, said the public has increasingly started to see the court as a political body.
“For a long time the Supreme Court was treated more as a court as opposed to a political body, and so there was a lot less scrutiny of justices’ activities than you would see, for example, of politicians,” he said. “Increasingly, as it became clear that the Supreme Court is a political actor in many respects, there has been more scrutiny. And unfortunately, what that scrutiny has led to is a number of stories that suggest that the justices have in some ways benefited from their positions financially.”
Markovic said the code was written by the justices themselves.
“There was originally some pushback at the notion that the court should have an ethics code, and they made it clear that any attempt from Congress to impose a code upon them could create separation of powers concerns,” he said. “However, it’s been clear that some of the justices – I’m referring here to Justices [Elena] Kagan and [Amy Coney] Barrett and others including [Brett] Kavanaugh, to his credit – would be open to imposing an ethics code on themselves.
“So it seems that a majority of the justices felt that a code would make sense at this point in time. And my view is that they managed to convince others to go along as well, perhaps to prevent Congress from imposing a code upon them.”
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The code emulates standards already enforced for lower courts with some key exceptions.
“It’s very similar to the code of conduct that is applicable to every other federal judge. So you have provisions relating to disqualification. For example, you have provisions relating to gifts, membership in various organizations,” Markovic said. “There are a couple of differences. So the Supreme Court has taken the view that they have to have more lax rules for recusal, given that the members of the Supreme Court, if they disqualify themselves from a particular matter, can’t be replaced by anyone.”
The justices also have more lax rules about book deals than lower court justices.
“We know that Supreme Court justices make a lot of money for their books. So they’re able to continue to do that under the current code,” Markovic said. “I would say another kind of key difference [is] there’s no requirement that the justices report on each other when they are aware of ethical misconduct. But for the most part, it seeks to emulate the code that is applicable to lower court judges.”
One of the biggest critiques of the code is that there isn’t any enforcement mechanism built in, Markovic said.
“Senator Sheldon Whitehouse has been a longtime critic of the ethics of the Supreme Court; [he] has obviously pointed to the lack of an enforcement mechanism,” Markovic said. “So I think that is indeed a problem, particularly when you combine it, for example, with the lax recusal rules.
“However, I do want to emphasize, I think this is an important step in the right direction. An ethics code can’t do everything. Obviously, you prefer to have some enforcement mechanism. Some have suggested an inspector general for the Supreme Court or kind of ombudsman. But nevertheless, at least now we have clear standards that we can hold the justices to and they can be criticized when they fail to adhere to those standards.”
