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U.S. Supreme Court unveils new ethics code, but critics say it doesn’t go far enough

The U.S. Supreme Court released a new ethics code on Monday, Nov. 13, 2023 but Sen. Dick Durbin, chair of the Senate Judiciary Committee, said the new rules “fall short of what we could and should expect when a Supreme Court issues a code of conduct.” Photo by Al Drago/Getty Images.

The U.S. Supreme Court released a new ethics code Monday, just days before the Democrat-led U.S. Senate Committee on the Judiciary again attempts to subpoena two high-profile GOP donors following revelations that justices accepted undisclosed luxury trips and engaged in other potential conflicts of interest.

Despite the headlines and the committee’s springtime request that Chief Justice John Roberts appear before the panel, Roberts has maintained that the court already followed its own ethics guidelines.

But Monday’s 15-page code of conduct co-signed by all nine justices is a new maneuver by the court to publicize its standards. The document states in its opening that the rules are “not new” and that the court has “long had the equivalent of common law ethics rules.”

“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 document states.

“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 five “canons” outlined over eight pages include that:

  • A justice should uphold the integrity and independence of the judiciary.
  • A justice should avoid impropriety and the appearance of impropriety in all activities.
  • A justice should perform the duties of office fairly, impartially and diligently.
  • A justice may engage in extrajudicial activities that are consistent with obligations of the judicial office.
  • And, a justice should refrain from political activity.

Durbin: Code falls short

Sen. Dick Durbin, chair of the Senate Judiciary Committee, said the new rules “fall short of what we could and should expect when a Supreme Court issues a code of conduct.”

The court’s new code “does not appear to contain any meaningful enforcement mechanism to hold justices accountable for any violations of code. It also leaves a wide range of decisions up to the discretion of individual justices, including decisions on recusal from sitting on cases,” the Illinois Democrat said on the Senate floor Monday.

“I’m still reviewing the court’s new code of conduct for now. I will note that the court’s adoption of this code marks a step in the right direction.”

Durbin and fellow Democrats on the Judiciary panel had planned to vote last week to subpoena high-profile Republican donors Harlan Crow and Leonard Leo, who bankrolled luxury travel for conservative Justices Clarence Thomas and Samuel Alito.

The vote to subpoena Crow and Leo, who Durbin claims have been uncooperative, was called off due to “scheduling issues,” Durbin said last week.

Sen. Sheldon Whitehouse, a Rhode Island Democrat who sits on the committee, attributed the delay Thursday to the panel’s Republicans introducing dozens of amendments that  “jammed the gears of the committee.”

Whitehouse, whose Supreme Court ethics bill was passed favorably out of committee in July, called the court’s release Monday “long overdue” and lacking.

“The honor system has not worked for members of the Roberts Court.  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,”  Whitehouse said in a statement Monday.

The committee is again scheduled to vote on the subpoenas this coming Thursday.

Ethics questions

In April, ProPublica chronicled years of private jet and yacht excursions paid for by Crow that Thomas never disclosed. The nonprofit investigative outfit also revealed that Thomas did not disclose a real estate transaction with Crow.

Following the ProPublica revelations, Politico reported that Justice Neil Gorsuch did not identify the purchaser who bought a 40-acre plot in Colorado co-owned by the justice — a sale from which he made between $250,001 and $500,000, according to federal disclosure forms. The purchaser turned out to be attorney Brian Duffy of the law firm Greenberg Traurig that has since argued numerous cases in front of the court.

The spring revelations set in motion a series of hearings by the Senate Committee on the Judiciary and its subcommittees.

Roberts was invited to but declined to attend the first of the hearings in early May.

In June, ProPublica revealed that Alito attended a fishing expedition in Alaska paid for and organized by Republican donors, including Leo.

In July, The Associated Press uncovered that Justice Sonia Sotomayor allegedly directed taxpayer-funded court staff to schedule speaking engagements related to her literary work and pitch sales of the justice’s books, according to the AP’s reporting.

Through more than 100 public records requests, the AP uncovered details about the court staff’s involvement in promoting Sotomayor’s memoir and children’s books — from which the justice has earned roughly $3.7 million.

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U.S. Supreme Court unveils new ethics code, but critics say it doesn’t go far enough