UPDATE 11/14/2023:
This thing couldn’t be more self-serving if it were written by the justices’ financial advisors.
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The first and most obvious problem with the court’s self-imposed ethics code is that there is no enforcement mechanism. It’s still up to the individual justices to decide if they have violated their own ethics rules. There’s no third-party adjudication of an ethics violation, there isn’t even meaningful peer review among the other justices of a potential violation.
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The justices wrote:"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. 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."A misunderstanding? The justices want people to believe that we were simply confused. [...] The justices are essentially saying that they’ve adopted this code so that people like me cannot say, “The Supreme Court is the only court in the country that operates without ethics rules.” Beyond that, it’s business as usual.
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Of course, what I’ve actually been saying is that the Supreme Court is the only court to operate without “statutory” ethics rules and commensurate statutory penalties for violating those rules.
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It might be possible to overlook that key failure of enforcement if the court’s self-imposed code of ethics was targeted at the spate of corruption recently revealed.
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There’s no clearer indication that these rules are useless than the fact that the rules end up codifying Thomas’s outrageous behavior as ethically within bounds. According to the rules, not a single thing Thomas has done is a problem.
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Moreover, Thomas isn’t even the biggest elephant in the room that this code ignores. One of the consistent ethical failures of the current Supreme Court is not the fishing trips or free vacations the justices regularly get from wealthy donors, but the fact the that conservative justices are basically on-call with the Federalist Society, a conservative political organization dedicated to making the law safe for conservative white men and nobody else.
Just last week, some of the justices appeared at the Federalist Society’s annual gala, and Justice Amy Coney Barrett was a featured speaker. But according to this alleged code of conduct, that is all okay. The code says that a Justice should not speak at an event sponsored by a “political party” or “campaign for political office.”
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“A Justice may attend a “fundraising event” of law related or other nonprofit organizations, but a Justice should not knowingly be a speaker, a guest of honor, or featured on the program of such event. In general, an event is a “fundraising event” if proceeds from the event exceed its costs or if donations are solicited in connection with the event.”
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The court redefined “fundraising event” as only those events where people are literally passing the hat around, as if somebody would ask the justices to make a solicitation speech at a telethon.
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[T]his year’s black-tie affair was called the “2023 Antonin Scalia Memorial Dinner” that they just so happened to charge people money to attend. The FedSoc doesn’t release information about how much money they make or lose from that dinner, so I guess the justices can never “knowingly” be aware if they’re attending a fundraiser or not.
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The code says: “A Justice may assist nonprofit law-related, civic, charitable, educational, religious, or social organizations in planning fundraising activities and may be listed as an officer, director, or trustee. Use of a Justice’s name, position in the organization, and judicial designation on an organization’s letter head, including when used for fundraising or soliciting members, is permissible if comparable information and designations are listed for others.”
Sure, just go ahead and put the justices on the actual letterhead of the social or religious organization when scrounging for dollars. What could possibly be the problem with that?
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There will undoubtedly be Republican politicians, and moderate Democrats, who claim that the justices have now done enough and should be trusted to self-police the rules they made up for themselves.
Nobody should fall for it. The Supreme Court is corrupt precisely because it acknowledges no outside institution to police its corruption. A code that has no enforcement mechanism, has no imposed penalties, and merely rubber stamps the justices’ own behavior is not an ethics code.
The code of conduct should be treated like a press release from the Supreme Court. [...] The first step in restraining the behavior of Supreme Court justices is for somebody other than the justices to try restraining them.
Elie Mystal @ The Nation
UPDATE 11/14/2023:
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