Justices argue that it is largely a codification of ethical standards that were already applicable

The U.S. Supreme Court announced in a statement Monday the promulgation of a code of conduct for its justices. The move comes after numerous scandals have called into question the integrity of several of the court’s members, who have accepted gifts and entertainment that raise ethical questions, including potential conflicts of interest. The text of the code, however, does not include any sanctioning regime or other mechanism to enforce compliance. Nor does it introduce stricter regulations on the gifts that judges may receive or on transparency obligations, so beyond the gesture it implies, it is unclear how effective it will be.

The new code of conduct, signed by the nine members of the Supreme Court, is only 15 pages long. Of these, only half include the provisions to be complied with, while the introduction, signatures and a commentary take up the rest of the space. “The undersigned justices promulgate this Code of Conduct to succinctly set forth and bring together in one place the ethical standards and principles governing the conduct of members of the Court,” reads the document’s introductory statement.

“For the most part, these standards and principles are not new: the Court has long had the equivalent of common law ethical rules, i.e., a set of rules derived from a variety of sources, including statutory provisions, the code that applies to other members of the federal judiciary, ethics advisory opinions issued by the Judicial Conference’s Committee on Codes of Conduct, and historical practice,” the justices explain in an argument that not all experts share, as it was not clear in what way these rules were applicable to them.

“The absence of a code, however, has led in recent years to the misunderstanding that the judges of this Court, unlike all other jurists in this country, consider themselves to be unconstrained by any standard of ethics. To dispel this misunderstanding, we are publishing this code, which represents in large measure a codification of the principles that we have long considered to govern our conduct,” the introduction concludes.

Three Supreme Court justices (Amy Coney Barrett, Elena Kagan and Brett Kavanaugh) have repeatedly expressed support for the development of a code of ethics in recent months. In May, Chief Justice John Roberts said the Court could do more to “adhere to the highest ethical standards,” without giving specifics.

The issue became topical after a series of reports questioning the justices’ moral practices. Many of the stories focused on Justice Clarence Thomas and his lack of transparency and disclosure of travel and other financial ties to wealthy conservative donors such as Texas real estate mogul Harlan Crow and the Koch brothers. In April, ProPublica uncovered years of undeclared luxury travel by the justice, sometimes on private jets and aboard a superyacht, paid for by Crow.

Several media have subsequently revealed other undeclared gifts by the judge from powerful friends. Among them, the purchase of the motor home used by Justice Thomas, the payment of private school tuition for a great-nephew and some real estate transactions.

Justices Samuel Alito, Neil Gorsuch and Sonia Sotomayor have also come under scrutiny. ProPublica reported on an invitation to a fishing trip to Judge Alito to Alaska with a GOP donor, a trip that conservative activist Leonard Leo helped arrange. The Associated Press reported that Sotomayor, aided by her staff, has promoted sales of her books through visits to universities over the past decade.

The first article of the newly enacted code states, “A justice of the Supreme Court of the United States shall maintain and observe high standards of conduct in order to preserve the integrity and independence of the federal judiciary.” In the second, it states, “A judge must not allow his or her family, social, political, financial, or other relationships to influence his or her official conduct or judgment. A judge must not knowingly use the prestige of judicial office to further his or her private interests or those of others, nor give or permit others to give the impression that they are in a special position to influence him or her.”

Several of the provisions indicate the cases in which a judge must abstain from ruling on a case. A rather lax incompatibility regime is also established, prohibiting judges from engaging in purely political activity, but leaving them wide latitude for academic or even business activities. “A judge may engage in extrajudicial activities, including those related to law, as well as civic, charitable, educational, religious, social, financial, fiduciary and governmental activities, and may speak, write, lecture and teach on legal and non-legal subjects,” says the code of conduct, which introduces the following caveat: “However, a judge must not engage in extrajudicial activities that undermine the dignity of his or her office, interfere with the performance of his or her official duties, call into question his or her impartiality, result in his or her frequent disqualification, or violate the limitations set forth.”

The judges have preferred not to pass stricter regulations on gifts. The code notes that judges must comply with the restrictions on accepting gifts and the prohibition on soliciting gifts set forth generally in the Judicial Conference Gift Rules. The text states that a judge should endeavor to prevent any member of the judge’s family residing in the judge’s household from soliciting or accepting a gift, except to the extent permitted by the Judicial Conference Gift Rules.

Nor is it guaranteed that with the code of ethics there will henceforth be greater transparency, as no change has been adopted, although the door is left open to “study the advisability” of modifying some rules on reporting obligations. “With respect to financial disclosure, judges will continue to seek guidance from the Office of Legal Counsel and the staff of the relevant Judicial Conference committees,” the comments to the code state.

Public confidence in and approval of the Court is near historic lows, according to a Gallup poll released in late September, just before the start of the new judicial year.

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