Legal Ethics

Supreme Court Prioritizes Ethics but Doesn’t Implement Mandatory Code
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The US Supreme Court has issued a statement pledging to adhere to “foundational ethics principles and practices” in response to the increasing controversy surrounding its ethics standards. The statement was signed by all nine justices and aimed to dispel “common misconceptions” about the court’s existing practices. It did not, however, introduce any new initiatives, nor did it endorse the implementation of a formal code of conduct.

The statement was attached to a letter from Chief Justice John Roberts, who had refused a request to testify before a Senate committee regarding ethics reform for the court. The highly unusual statement is unlikely to quell the growing scrutiny of individual justices nor to stem the ongoing conflict between different branches of government over the disclosure and recusal practices of the nation’s highest court.

The statement drew criticism from Senate Judiciary Chairman Dick Durbin, who had requested Roberts’s testimony. Durbin stated that he was “surprised that the chief justice’s recounting of existing legal standards of ethics suggests current law is adequate and ignores the obvious.” Gabe Roth, executive director of the watchdog group Fix the Court, also criticized the statement and said it was “nowhere near an appropriate response to the ethical failures of the current court.”

  
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The controversy arose in part due to a report from investigative journalism non-profit ProPublica. The report revealed that Justice Clarence Thomas had failed to disclose luxury trips paid for by Harlan Crow, a Texas real estate developer who has donated millions to conservative causes over a period of two decades. ProPublica’s second story reported that Crow had purchased three Georgia properties, including Thomas’s boyhood home, from the justice and his relatives.

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The Supreme Court is not bound by the code of conduct that applies to the rest of the federal judiciary, but the statement pointed to a 1991 resolution in which the justices agreed to abide by the regulations regardless. The statement claimed that “since then, justices have followed the financial disclosure requirements and limitations on gifts, outside earned income, outside employment, and honoraria” and that they file the same annual financial disclosure reports as other federal judges.

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The statement also defended the court’s current practice of allowing individual justices to make decisions about disqualifying themselves from cases, stating that if the full court were to review the recusal decisions of individual justices, it “would create an undesirable situation in which the court could affect the outcome of a case by selecting who among its members may participate.” This practice has drawn criticism in recent times, particularly in the case of Thomas, who did not recuse himself from cases relating to the 2020 election, despite his wife’s pressing of Trump administration officials to attempt to overturn the results.

The statement did not directly address the Thomas controversy but only briefly mentioned gift limits and disclosure requirements, as well as an exemption for “personal hospitality.”



Overall, the statement reaffirms the court’s commitment to ethical principles but does not introduce any new initiatives or suggest the implementation of a formal code of conduct. The controversy surrounding the court’s ethics practices is unlikely to dissipate as individual justices continue to face scrutiny and criticism.



 

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