The Supreme Court’s announcement of its first code of conduct Monday did little to slow the Democratic drive to pass legislation to bind the justices with a set of tighter ethics rules.
Democrats and some outside advocates have spent months backing legislation to impose recusal standards, an ethics complaint review process and more changes to the court — none of which was included in the court’s 14-page code.
Sen. Sheldon Whitehouse, D-R.I., the main Senate backer of Supreme Court ethics legislation, called the code “a chink in their armor of indifference” but said it had no teeth because it lacks enforcement provisions and only says justices “should” act a certain way.
“Basically, what they did was they said, ‘We’re willing to play by the rules of baseball, but we’re not willing to have umpires,’ and that’s not how the rules of baseball really work,” Whitehouse said.
“None of it is real, until there’s a way that you get to actual answers about misconduct and potential misconduct,” Whitehouse said.
Whitehouse, the prime sponsor of the Supreme Court ethics measure that the Senate Judiciary Committee advanced this summer, said he plans to continue to push for the bill’s passage on the Senate floor.
Republicans have called the bill an attack on the Supreme Court by Democrats unhappy with how the conservative-controlled high court has ruled. They also largely reacted with praise following the release of the ethics code Monday.
Judiciary Committee ranking member Sen. Lindsey Graham, R-S.C., called it a “good step” for the court. Sen. John Cornyn, R-Texas, a member of the Senate Judiciary Committee, praised the code and noted the court’s status as an independent branch of government.
“It’s a closed book as far as I’m concerned,” Cornyn said.
He and other Republicans said Congress should not have a role in policing the court’s ethics. He characterized the effort by Democrats to push forward on subpoenas this week as an “intimidation tactic” meant to target conservative members of the court.
Recusal and more
The sponsor of the House version of the bill, Rep. Hank Johnson, D-Ga., called the code published Monday a “public relations response” to the pressure the court has faced. He said he and other Democrats would continue to push for legislation like his that has enforcement provisions.
“What we have is simply a reversion to the status quo, which is that each justice is now the judge and juror in their particular case. So they get to determine how and if they follow their own rules of conduct, and the public is left out,” Johnson said.
Johnson said only a code that actually addresses ethics problems like undisclosed gifts, private jet travel and concerns around influence peddling would actually satisfy critics.
“The code of conduct of the court allows for the continued influence on the court by organizations like the Federalist Society and the Koch brothers. It authorizes the justices to hobnob with these folks who have interests before the court. That’s wrong,” Johnson said.
Republicans have criticized specific provisions in the ethics bills, such as the recusal requirements. Those, they argue, would allow litigants to game the system by trying to elevate cases that could “pick off” a particular justice for recusal, effectively winning cases by manipulating the court.
That concern came up in the court’s own commentary, where the justices addressed why they decided to adopt their recusal standards. All Supreme Court justices sit in most cases, so there are no potential substitutes, the commentary said.
Allowing filers to strategically pick off justices could effectively decide the results of some cases, the commentary said.
“In short, much can be lost when even one Justice does not participate in a particular case,” the commentary said.
All nine justices signed on to the document released Monday, which itself noted it does not contain many new elements. It’s also substantially similar to a voluntary “statement of ethics principles and practices” released earlier this year that all the justices signed on to.
An introduction to the document states it intends to correct a “misunderstanding” that the court is not bound by ethical rules at all. The code of conduct lays out the rules for how justices “should” act in situations ranging from teaching income and whether they can hold an official position in a business to gift reporting rules and whether they can use government resources for unofficial purposes.
The code also includes a commentary where the justices explained some of the rules and defended where they diverged from the stricter standards lower court judges adhere to. The commentary said the justices preferred “broadly worded general principles informing conduct, rather than specific rules requiring no exercise in judgment or discretion.”
Richard Briffault, a law professor at Columbia University Law School, said the court didn’t seem to be changing much of anything with Monday’s document.
Briffault noted the lack of both an enforcement mechanism as well as any language that actually requires the justices to do anything.
“Even in their own view it doesn’t change anything,” Briffault said, noting the introduction to the document.
“But it does mean that if issues come up in the future there is a written document that justices’ behavior can be held against,” Briffault said. “It’s a small thing, but it is something.”
Veronica Root Martinez, a law professor at Duke University specializing in legal ethics, said she was happy the court had adopted a formal code.
“I absolutely believe this is better than nothing,” Martinez said.
She and other experts noted the code’s lack of enforcement provisions, as well as the statements that justices “should” act in a certain way, leaving the rules open to interpretation.
“There is a big distinction between the words ‘should’ or ‘shall’ or ‘must’ or ‘may’ in codes like these. A ‘shall’ means there is no equivocation, you absolutely have to follow what it says,” Martinez said. “I wonder whether the word ‘should’ was necessary to get agreement of all members of the court.”
She said the provisions that specify where justices “may not” gain income from outside sources have roots in existing federal law governing the judiciary, not the code issued Monday.
Martinez characterized the back-and-forth between Congress and the Supreme Court as a “game of chicken.” Members of the court have said “trust us” and that Congress may not have the power to regulate the court, she said.
Meanwhile, she said members of Congress have said the court has to act, or they will.
“At least now in this game of chicken we have someone blinking,” she said.