By Ariane de Vogue and Devan Cole | CNN
The Supreme Court on Monday announced a code of conduct in an attempt to bolster the public’s confidence in the court after months of news stories alleging that some of the justices have been skirting ethics regulations.
In a brief statement the justices said that the code is “substantially derived” from an existing code of conduct that applies to the lower court but has been adapted to the “unique institutional setting of the Supreme Court.”
However, the justices fail to explain how the code would work, who would enforce it and acknowledged they had more work to do, including on financial disclosures.
The court acknowledged it might need additional resources to “perform initial and ongoing review of recusal and other ethics issues.”
The absence of a code “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 justices said in a statement. “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.”
The move comes after mounting pressure from Democrats in Congress who threatened to pass legislation that would mandate ethics reform. As a part of their inquiry, Democrats on the Senate Judiciary Committee said they planned to hold a vote to authorize subpoenas for two major conservative players close to conservative Justices Clarence Thomas and Samuel Alito.
“The justices are clearly reacting to recent public criticism by formally adopting this code,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.
“But the key is what’s missing: how are these rules going to be enforced, and by whom? Even the most rigorous ethical and financial reporting requirements won’t mean very much if there’s no one monitoring the justices’ compliance and no push back when those rules are violated,” Vladeck added. “And on that subject, today’s release says only that it will be up to the justices themselves. It’s hard to imagine that such a milquetoast response will satisfy most of the court’s critics.”
In the statement the court emphasized that the rules and principles outlined in the document are “not new.”
For instance, the new document says that the justices will continue to rely on the Office of Legal Counsel, an office inside the court, for “recurring ethics and financial disclosure issues” but makes no mention of how any violations would be enforced. It also stresses that “annual training” will continue to be provided although it makes no mention if such training is mandatory.
The Senate Judiciary Committee began its work after ProPublica reported during the high court’s last term that Harlan Crow – a GOP megadonor – had paid for lavish trips for Thomas and allowed him to fly on his private jet. Thomas said that he didn’t report the gifts because the rules at the time did not require such disclosures.
The outlet also published a report that Alito did not disclose a luxury 2008 fishing trip he took on a private jet that was organized in part by Leonard Leo, a longtime player in conservative judicial circles. According to the publication, the justice’s stay was provided free of charge by another major donor to the conservative legal movement, Robin Arkley.
In an unusual move, Alito actually responded to the allegations before they were published. He authored an op-ed in the Wall Street Journal arguing that the criticisms against him were not “valid.” Alito said that under the rules that were in effect at the time, the hospitality did not have to be reported.
The Associated Press also raised questions last July concerning Justice Sonia Sotomayor’s use of taxpayer funded court staff to coordinate book sales. Republicans on the Senate Judiciary Committee are urging a subpoena to go out to her staff.
Last week, Senate Judiciary Chairman Dick Durbin said he would continue to press for a vote to enforce subpoenas against Crow and Leo who had declined to comply with committee requests for information.
“Senate Judiciary Committee Democrats remain united in our effort to implement an enforceable code of conduct for Supreme Court justices,” said Durbin, an Illinois Democrat.
Chief Justice John Roberts has previously rebuffed requests to testify before Congress on the matter, although recently he and Justices Elena Kagan, Brett Kavanaugh and Amy Coney Barrett had expressed various levels of support in public appearances for the justices themselves to offer more transparency when it comes to alleged conflicts of interest.
Barrett, for example, said last month that it would be a “good idea” to adopt a formal code, “particularly so that we can communicate to the public exactly what it is that we are doing in a clearer way than perhaps we have been able to do so far.”
Last April, the court tried to stem criticism by releasing a new statement signed by all nine justices that was meant to provide “clarity” to the public about the high court’s ethics practices. The document outlined that the high court voluntarily followed some of the rules employed by lower court judges and consulted a “wide variety of authorities to address specific ethical issues.”
But the effort fell far short of what critics said was necessary.