The absence of an ethics code “has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules,” said the statement signed by Chief Justice John G. Roberts Jr. and his eight colleagues. “To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct.”
The code contains broadly worded sections relating to outside relationships, restricting participation in cases that could mean financial gain to family members, the use of a justice’s staff and reiterates limits on participating in fundraising activities for groups or accepting gifts.
An unsigned “commentary” accompanying the code indicates justices will continue to make their own decisions about recusals and speaking engagements. It says justices should “consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public.”
It emphasizes that recusals should be rare because each justice is needed on a nine-member court, where there can be no replacement. “In short, much can be lost when even one Justice does not participate in a particular case,” the statement says.
The commentary also suggests the court is still looking for some answers. “To assist the Justices in complying with these Canons, the Chief Justice has directed Court officers to undertake an examination of best practices, drawing in part on the experience of other federal and state courts,” it says.
The code does not seem to provide a specific remedy for a complaint that a justice has violated the court’s standards.
Although the justices say they voluntarily comply with the same ethical guidelines that apply to other federal judges, the lack of an ethics code specific to the Supreme Court has become a prominent complaint on Capitol Hill, where in 2019 Justice Elena Kagan told a congressional committee that Roberts was “seriously” studying the issue.
Even though the court’s legal counsel Ethan Torrey prepared a working document of issues for them to consider, the issue stagnated. Leaders of the American Bar Association said in a statement last year that “the absence of a clearly articulated, binding code of ethics for the justices of the Court imperils the legitimacy of the Court.”
The Supreme Court’s announcement follows months of criticism of the court following revelations that some of the justices accepted, but did not publicly report, expensive trips and gifts from wealthy benefactors.
The justices have been under immense pressure to strengthen their disclosure and recusal polices after news reports that Justices Clarence Thomas and Samuel A. Alito Jr. did not disclose free trips they accepted many years ago from wealthy conservative donors.
Last week, Senate Democrats turned up the pressure, opening debate on the authorization of subpoenas for more information about those trips from Texas billionaire Harlan Crow, a longtime friend of Thomas, and judicial activist Leonard Leo, who was instrumental in building the conservative supermajority on the court.
Reports from the investigative news site ProPublica detailed how Crow paid for luxury vacations and private jet travel for Thomas over many years. Crow also purchased several properties from Thomas and his relatives and paid the private school tuition for Thomas’s great-nephew.
Separately, Leo arranged for Alito to take a 2008 fishing trip to Alaska with a billionaire hedge fund manager.
The vote by the Senate Judiciary Committee was delayed because of strong opposition from Republican lawmakers who say the scrutiny of two conservative justices is a politically motivated in response to the court’s recent rulings, including the expansion of gun rights and elimination of the nationwide right to abortion.
Thomas and Alito have both said that under the rules in place at the time, they did not believe they needed to report private jet travel and free trips. In his annual financial disclosure this year, Thomas for the first time reported Crow’s purchase in 2014 of the family properties in Savannah, Ga., and reported three 2022 trips on Crow’s private jet.
But the more recent media reports have led Democratic lawmakers to support legislation that would require ethics rules for the justices as strict as those that apply to members of Congress.
Roberts last April turned down an invitation to testify before the Senate Judiciary Committee, raising separation of powers concerns. Instead, all nine justices signed a nonbinding “Statement on Ethics Principles and Practices.” The memo was criticized by Democrats as recycled and insufficient.
Since then, three justices – Kagan, Brett M. Kavanaugh and Amy Coney Barrett — have all suggested in public remarks the high court should act on its own to adopt a binding policy.
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