The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Monday, the Supreme Court for the first time adopted an ethics code for its justices. The relatively short (14 pages) "Code of Conduct" was likely enacted in response to various controversies over the last year. I think the rules outlined in the Code seem reasonable, though there is some legitimate concern about the lack of enforcement provisions.
In an introductory statement, the justices write that "[f]or the most part these rules and principles are not new." Even so, there is value to having these rules clearly stated, so that observers can know what rules the justices consider themselves bound by.
Most of the rules strike me as intuitive and eminently defensible. Among the highlights are guidelines for recusal—the first in the Court's over two hundred year history. While justices have at times recused themselves for various reasons, until now the Court had not systematically outlined the rules that apply in such cases.
And the rules announced Monday make good sense. For example, they require recusal when there is a significant financial conflict of interest, and when a close relative of the justice is lead counsel in the case or an equity partner in the firm litigating it (and thus stands to profit financially).
It is also notable that the Code requires justices to "comply with the restrictions on acceptance of gifts and the prohibition on solicitation of gifts set forth in the Judicial Conference Regulations on Gifts now in effect." Those regulations generally forbid receipt of large-scale gifts like the expensive free vacations Justice Clarence Thomas apparently got from conservative billionaire Harlan Crow. There are a few (to my mind sensible) exceptions, such as "travel expenses, including the cost of transportation, lodging, and meals… to attend a bar-related function, an educational activity, or an activity devoted to the improvement of the law, the legal system, or the administration of justice."
Critics of the new code have focused on the lack of enforcement mechanisms. If a justice violates the rules, there is no provision for any kind of penalty.
This is a reasonable concern. It is, however, partly mitigated by the fact that the justices care about their reputations, and a justice who violates these rules is likely to take reputational damage. He or she can no longer claim that the relevant standards are unclear. It is also the case that it's hard to create a binding enforcement mechanism for the Court without intruding on judicial independence. These considerations may block enforcement mechanisms as rigorous as critics might want.
Even so, it should be possible to have at least some enforcement mechanisms. For example, the justices might be able to agree on a system of fines for violations, adjudicated by judicial branch officials they themselves could designate. I think Congress could also mandate at least some types of fines or other similar sanctions, as it has already done with the federal bribery statute (which applies to Supreme Court justices).
In my view, Justice Alito was wrong to claim that "No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court." Congress does have considerable, though far from unlimited, authority to set ethical rules for Supreme Court justices.
As I have previously noted, many of the ethics accusations against the justices are overblown, and many of the critics are at least in part motivated by their dislike of the conservative justices' rulings. It is also important to emphasize there is no evidence that any justice decided any case differently because of any gifts or other largesse they received. If Justice Thomas were really doing the bidding of Harlan Crow, he probably would not have voted to overrule Roe v. Wade, as Crow is pro-choice.
But that doesn't prove ethics concerns are completely without merit. It is reasonable to impose constraints on justices taking large gifts from private individuals and organizations, other than close relatives. Few oppose having such restrictions for lower court judges and for other influential government officials.
And some of the largesse Justice Thomas got from Harlan Crow, strikes me as going beyond what can reasonably be justified. The same goes for some of the free travel and other perks received by other justices, including some of the liberals. An occasional free dinner is no big deal. Free vacations worth tens of thousands of dollars are a different matter.
For those keeping track, I am not one of those people who raise ethics issues because they hate the Court's recent major rulings, and want to curb its power. Much the contrary. I believe most (though not all) the prominent Supreme Court decisions of the last two years are largely right, and am strongly opposed to court-packing and other similar schemes to weaken the Court's authority.
It's hard to say exactly where the line on gifts and other such matters should be drawn. Ditto for recusal standards. But the Code announced Monday at least seems like a reasonable approach. It's definitely a step in the right direction.