Do Justices See Themselves Being Above the Need and Reach of Ethics Rules?
The difference between those ensconced in Washington officialdom and us is that politicians apparently lose the ability to draw on common sense when they enter the capital.
Examples of would-be royalty and special privilege abound, of course, unlimited by party affiliation. Otherwise, we wouldn’t have these incident involving government documents, including those with classified markings, ending up in private homes or resorts and we wouldn’t have the need for as many personal staffers to key in Twitter posts and the like.
The current and continuing case that has arisen anew is an ethics code for U.S. Supreme Court justices. Common sense would suggest that the nine justices ought to abide by the same ethics rules that govern official behavior for other federal employees – even other federal judges.
But the justices themselves? Not so fast.
Indeed, we learned again this week via a sourced story in The Washington Post that while the justices have been talking about an ethics code among themselves for at least four years, they can’t seem to agree on what such ethics rules might be or they simply see themselves either beyond the need and reach of rules.
The blindfold on Lady Justice must be a lot more effective about seeing themselves than the need to build both public trust and a sense of fairness from the Court.
Only inside this Supreme Court does the behavior of Justice Clarence Thomas ruling on matters involving Donald Trump’s election beefs while his wife, Virginia “Ginni” Thomas has been actively seeking the overthrow of election results, seem legitimate. In recent months, we have seen justices speaking at partisan political gatherings and disclosures that Chief Justice John G. Roberts Jr. taking part in cases in which his wife, Jane Sullivan Roberts, has direct business interests.
Because the justices won’t act, some senators now want to force the issue with legislation.
No Agreement Among Justices
The Post quoted anonymous sources as saying that ethics remain an active topic at the court, with legal counsel Ethan Torrey assigned to develop a document for the justices to consider. One emergent issue is who would enforce such a code or adjudicate it.
The ethics issues have moved ahead as this court’s conservative majority has become much more active at rewriting legal precedents in a manner that favor issues of religion, states’ rights, prosecutorial fervor, and gun ownership and looking with disfavor at environmental protection, voter protections, affirmative action, labor, health, and safety issues – a collection of decisions that mirror conservative political party stands.
It is also a time in which elimination of perceived abortion rights through the overturning of a 50-year-old precedent and other controversial decisions involving same-sex marriage rights are proving highly unpopular. Recent polls reflect only single-digit percent of voter approvals for the court’s apparent legal agenda.
Inertia on acting to restrict what are seen as specific judicial overstepping has lit a fire in the Congress where there is renewed effort towards forcing the justices to adopt the federal judicial code of ethics governing the behavior on and off the bench of justices and their spouses.
The failure of Justice Thomas to recuse himself from participating in decisions that touch directly on Trump’s election challenges while Ginni Thomas continues to take an active role in the very same election issues is among the chief targets of continuing frustration over the ethics issue. Ginni Thomas was interviewed by the Jan. 6 committee, where she said she does not consult her husband about her activities, and he does not discuss the court’s work with her. Clarence Thomas did not respond to questions about his wife’s activities or his decision to participate in the cases.
The leak of the abortion case decision last Spring led to a futile in-house investigation that by all accounts was sloppy and incomplete. It remained a distinct possibility that the leaker was one of the justices looking to cement support among colleagues to keep the majority coalition together for the issuance of that ruling last summer.
Several media outlets reported on what a former anti-abortion evangelical leader said were efforts to encourage conservative justices to be bold in decisions regarding abortion Alito denied a specific allegation from the Rev. Rob Schenck to the New York Times that the justice or his wife disclosed to conservative donors the outcome of a pending 2014 case regarding contraceptives and religious rights.
Calls for Action
Now the American Bar Association is joining those urging action, saying that “the absence of a clearly articulated, binding code of ethics for the justices of the court imperils the legitimacy of the Court.” There are other groups like Fix the Court, which have advocated for greater accountability and transparency at the court.
Although the justices say they voluntarily comply with the same ethical guidelines that apply to other federal judges, the lack of an ethics code for the Supreme Court only has become an unresolved burr for Congress.
Officially, Justice Elena Kagan told a congressional committee in 2019 that an ethics review was underway at the court, but it has not been finished. In the past, the chief justice said his court voluntarily complies with the same standards that govern other judges, including recusal from cases in which they or close family members might have a financial interest. Roberts says that the Supremes cannot be bound by all the rules that apply to lower court judges because of the unique role the Constitution assigns the Supreme Court as the ultimate decision-maker.
Justices file annual financial disclosure forms, including reports on outside income, travel paid for by others and gifts. Those annual disclosure reports include stock ownership and notices of spousal employment.
Justices make their own calls about when to recuse, and no other judge is authorized to replace them. Indeed, they seem to leave it up to the individual justice.
The justices increasingly are speaking to identifiably partisan groups about the court and its practices. In 2020, leaders of the judiciary’s governing body proposed barring federal judges from belonging to such groups because of concerns that membership in either group could “call into question a judge’s impartiality.” But the draft from the Judicial Conference’s code of conduct committee was scuttled.
Roberts and Kagan have declined to address groups with such ideological leanings, but Justice Samuel Alito has vigorously defended federal jurists who choose to affiliate with such organizations.
In recent years, there were bipartisan efforts in Congress to require a code of conduct and enhance financial disclosure requirements for Supreme Court justices. Sen. Sheldon Whitehouse (D-R.I.) and Sen. Lindsey O. Graham (R-S.C.) expressed concern in a 2021 letter to Roberts that justices of “our highest court are subject to the lowest standards of transparency of any senior officials across the federal government.”
You’d think that a little common sense would go a long way here.