The Supreme Court's new code of ethics is little more than a naked attempt to gaslight our nation after a year of disturbing reports showing that the justices have been engaged in what would be considered highly unethical conduct in any other branch of government.
Chief Justice John Roberts would have Americans believe that the justices' self-inflicted ethical problems are merely a "misunderstanding" and that the justices are now simply codifying principles that already govern their conduct. In other words: "This is fine." But recent polls show a majority of Americans — regardless of political affiliation — disagree. It's time to demand accountability from our country's highest legal authority by passing the ethics code introduced by Senate Democrats.
Federal law requires justices to recuse themselves from hearing cases where their impartiality might reasonably be questioned — a mandate that the Supreme Court has blatantly ignored and is now attempting to rewrite. The law says justices "shall disqualify" themselves in such cases, but the Supreme Court's new code of conduct only suggests justices "should disqualify" themselves.
Worse, the code is unenforceable. By giving individual justices sole power over their own recusals, it guarantees nothing will change. Compare this wildly permissive language with the stringent prohibitions on federal employees from receiving gifts from anyone who conducts "activities regulated by (their) agency" or has "interests that may be substantially affected by" their actions. Members of Congress must report to their ethics office whenever they receive a gift worth more than $250 from a close friend. Meanwhile, Supreme Court justices have left travel expenditures and land deals worth hundreds of thousands of dollars off their disclosure forms for years.
Roberts says the court has "long regarded" ethical principles. In recent years, we've seen billionaires host justices such as Clarence Thomas and Samuel Alito on their private jets, super yachts and resorts when they stand to benefit financially from a ruling in an active case. We've seen justices secretly participate in fundraising events for entities that then finance amicus briefs to influence the court. We've even seen lawsuits stemming from entities with significant funding ties to judicial activist Leonard Leo, who, according to Washington Post reporting, secretly funneled tens of thousands of dollars to Thomas' wife.
In none of these instances have justices ever recused themselves from a case. Unlike most Americans who are required to follow an employee code of conduct, the Supreme Court is positioning itself as above the law it is sworn to enforce.
This new ethics code will change nothing. In fact, its adoption only intensifies Congress' need to establish an actual, enforceable code of conduct. The justices have been brazen in their disregard for ethical standards, with Roberts refusing the Senate Judiciary Committee's request to testify on the subject and Alito asserting that Congress has "no authority" to regulate them.
The hand-waving of corruption allegations by Roberts and his colleagues will only further damage an institution already distrusted by most Americans. Seventy percent of Americans think the Supreme Court should be subject to congressional ethics investigations, and they're unlikely to buy this fig leaf of a code of conduct. Three in every four voters — including 72% of Republicans — support taking congressional action to implement a binding code of ethics over these justices who refuse to police themselves.
To that end, the Senate has already passed out of committee the Supreme Court Ethics, Recusal, and Transparency Act, which would adopt a code of conduct, provide a mechanism to investigate ethical violations, improve disclosure laws, and require justices to explain publicly their recusal decisions when they have connections to parties before the court.
It's time for the Senate to pass this bill and move it to the House. And if the Supreme Court continues to rebuke reasonable and legitimate oversight, Congress should take additional action to rein in this out-of-control court — including considering term limits for justices, which 68% of Americans support.
The Supreme Court claims the code it just enacted is sufficient. In truth, it greenlights the justices' egregious conduct. It allows them to continue to be treated to luxury vacations and to engage in shady land deals, and it permits their families to actively advocate for the overthrowing of American democracy — all in collaboration with parties who have active business before the court. If the justices don't believe this gives rise to an appearance of corruption, the fault lies with them, not the American people they're trying to gaslight.
Devon Ombres is the senior director for Courts and Legal Policy at the Center for American Progress. He wrote this for InsideSources.com.