(Photo courtesy of TheRoot). “Members of the Supreme Court.”
On Monday, November 13, The Supreme Court of the United States adopted a new code of ethics. Signed by all nine Justices, the code was implemented in response to several months of media criticisms for an assortment of undisclosed donations made to certain Justices, including Justice Sotomayor and Justice Thomas. While the Supreme Court has been acting under an ethical framework, “equivalent of common law ethics rules”, no official code of ethical conduct has ever been published. These new rules, including five canons of conduct published, were mostly repurposed language taken from lower courts, which already have explicit codes of conduct.
In an unsigned statement that accompanied the signed code, the Court sought to resolve, “the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.” This is a clear allusion to another primary goal of the code, which is to boost national confidence in the judiciary. This comes at a critical time in the Court’s history: according to a recent Gallup poll from the beginning of October, the approval rating of the Supreme Court is nearing a record low.
The public reception to this ethics code has been deeply mixed. According to Dr. John Cluverius, a professor of Political Science at UMass Lowell, the lack of enforcement is one of the key sources of criticism. “It’s good to have these rules, but you have to have ways of monitoring compliance with those rules that are strong and a way to punish those who violate those rules.” says Cluverius.
Several Republicans have also criticized the development, albeit on separate grounds. They contend that much of the Democrat posturing about Supreme Court ethics, led now by Senator Dick Durbin of Illinois, comes mainly from dissatisfaction with the Court’s recent string of Conservative decisions, including the overturn of Roe v. Wade.
According to Dr. Jeffrey Gerson, another professor of Political Science at UMass Lowell, Senator Durbin has framed the situation accurately. “I agree with Senator Durbin… it’s a good baby step but mostly falls short of the mark,” Gerson said. Senator Durbin, who works as chairman of the Senate Judiciary Committee, has been investigating the Court’s ethics for several months now. His most recent proposals involved votes in the Senate to authorize subpoenas for different donors who have given money to Justices for use in lavish trips, among other purposes. So far, these decisions have been met with pushback and delays by other members of the Senate.
Despite much of the criticism surrounding it, this official code of ethics is still seen as a step in the right direction. Even Conservative Justices like Amy Coney Barrett and Brett Kavanaugh have been long-time advocates of an ethics code. The larger issue that may soon be faced surrounding ethics policies of the Supreme Court is likely to be Constitutional. What the Court’s ethical norms precisely should be, and what limits the Legislature is permitted to place on the Supreme Court, are likely to both become major sources of tension and debate in the months ahead.