Saying that public officials should be “ethical” is like saying that sunshine and puppies are good things. The tougher questions are what “ethical” means, how to tell if public officials meet that standard and what to do if they don’t.
So, we should be wary of the current campaign to exert control over the Supreme Court by creating a fake “ethics crisis” and smearing justices whose decisions may not reliably advance specific political interests. On Nov. 13, the court announced the adoption of its own code of conduct, a positive step unlikely to satisfy the critics.
This campaign knows its primary narrative, that the Supreme Court has no ethical rules, is false. The Ethics in Government Act governs financial disclosures and applies to all federal judges and Supreme Court justices. Another federal statute, which also applies to the justices, sets standards for when they should not participate in a particular case assigned to them. The Supreme Court has publicly committed to follow the Code of Conduct for US Judges, which formally applies to lower court judges, and has done so for decades.
The critics’ objective is not to seek a legitimate solution to a genuine problem but to foster the false notion that there must be something wrong at the Supreme Court and create the appearance that the court can be forced to knuckle under. The Supreme Court’s new code of conduct and how the court announced it undercut the critics’ strategy.
The code is virtually identical to the one that justices follow; each is organized into the same five ethical canons. The only substantive difference, if it can even be called that, is the Supreme Court code’s additional detail about recusal and activities such as speaking, teaching or writing. Putting the two codes side by side, however, shows this is a distinction without a difference. In other words, the court essentially put its name on the lower courts’ code that the justices were already following.