Critics of the Supreme Court’s ethics standards are viewing the justices’ new code of conduct as a step in the right direction, but they say it leaves much to be desired.
Democrats are vowing to still push ahead with their ethics legislation, taking aim alongside judicial watchdog groups at the code’s lack of enforcement mechanisms.
The justices indicated that they released the Supreme Court’s first-ever ethics code to dispel the “misunderstanding” that the justices “regard themselves as unrestricted by any ethics rules” — a rare statement that followed a series of controversies.
But that did little to satisfy Democrats on Capitol Hill looking for more, particularly when it comes to enforcement.
“This is a long-overdue step by the justices, but a code of ethics is not binding unless there is a mechanism to investigate possible violations and enforce the rules,” Sen. Sheldon Whitehouse (D-R.I.), a leading advocate for Supreme Court ethics reform, responded in a statement.
“The honor system has not worked for members of the Roberts Court,” Whitehouse continued, referring to Chief Justice John Roberts. “My ethics bill would create a transparent process for complaints and allow a panel of chief judges from the lower courts to investigate and make recommendations based on those complaints.”
On the Senate floor Monday, Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) said the code “marks a step in the right direction,” but the justices still “fall short” of what the public expects.
“Today, for the first time in history, the Supreme Court of the United States is at least saying to the American people: ‘We hear you,’” Durbin said.
The high court’s new code comes after a stream of controversies in recent months, including a series of ProPublica reports detailing undisclosed trips and a real estate deal Justice Clarence Thomas accepted from a billionaire and Republican megadonor.
As Democrats renewed a push for congressional intervention, including attempts to summon Roberts to Capitol Hill and pass new ethics legislation, reports continued to trickle out about the justices in both ideological camps.
ProPublica reported an undisclosed private flight Justice Samuel Alito accepted from another billionaire and Republican megadonor. The Associated Press detailed how Justice Sonia Sotomayor’s taxpayer-funded court aide pushed book sales. Politico revealed how Justice Neil Gorsuch, days after his confirmation, sold a property he co-owned to the chief executive of a major law firm.
Senate Majority Leader Chuck Schumer (D-N.Y.) called the ethics code an “important step” while slamming its lack of enforceability as a “glaring omission.”
“Justices, it seems, are left to their own devices in applying this code to themselves,” Schumer said on the Senate floor Tuesday. “Frankly, Americans could be excused if they’re skeptical after everything they’ve read in the paper about justices accepting lavish gifts and vacationing with ultra-rich ideologues, some of whom bring cases before the court.”
Other Democrats were less generous, insisting the code wasn’t a meaningful step at all.
“The Supreme Court’s new code of conduct is useless without enforcement and will do nothing to restore trust after serious ethics failures,” Sen. Elizabeth Warren (D-Mass.) wrote on X, the platform formerly known as Twitter. “Like every other federal court, the Supreme Court needs a binding code of ethics. If the Justices won’t step up, Congress must act.”
“If there’s no way to enforce it, if there’s no one to investigate it, if there’s no repercussion for violating it, then it’s a pretty worthless code,” Rep. Adam Schiff (D-Calif.) said on MSNBC. “They’re going to have to do better than that. I think Congress ought to move forward with its own code of ethics imposed on the Supreme Court.”
Signed by all of the justices, the nine-page code was accompanied by five additional pages of commentary. It did not note any enforcement mechanism, and a brief, unsigned statement indicated the ethics rules for the most part “are not new.”
“The absence of a Code, however, 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,” the statement read. “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.”
Gabe Roth, the executive director of Fix the Court, a judicial watchdog group that has backed ethics reform at the high court, said that statement “gives away the game.”
“Yet this recitation is untrue,” Roth said in a statement. “There’s a Code today because the justices have clearly and for years failed to live up to their ethical responsibilities, and once the public finally caught wind of it to a large degree, the nine had little choice but to react to that pressure.”
The code itself largely mimics the one in place for other federal judges, although the justices did implement various tweaks.
Both codes include a section about speaking engagements. But while the version for lower courts is silent as to whether judges may speak at an event where their book is available for purchase, the Supreme Court’s version explicitly condones such events.
“A Justice should not speak at or otherwise participate in an event that promotes a commercial product or service, except that a Justice may attend and speak at an event where the Justice’s books are available for purchase,” the Supreme Court’s version states.
All federal judges are allowed to accept reimbursement for the “actual costs” of travel, food and lodging for permitted extrajudicial activities, like speaking at a college. But the Supreme Court’s code provides more flexibility, as it also allows the justice to accept reimbursement for “reasonably estimated costs.”
In another provision about preventing outside influence from impacting cases, the Supreme Court’s version narrows the section’s scope by twice adding the word “knowingly.”
“A Justice should neither knowingly lend the prestige of the judicial office to advance the private interests of the Justice or others nor knowingly convey or permit others to convey the impression that they are in a special position to influence the Justice,” the Supreme Court’s ethics code reads.