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How SCOTUS's "ethics code" provides cover for corruption
It's weak sauce — which was the goal all along.
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After unrelenting pressure from everyone but Republicans, who by and large are thrilled that Supreme Court justices can be bought, the Court has issued a voluntary, non-binding code of conduct.
Of course, a non-binding code is no code at all, which is the problem here. As long as the members of the Court see themselves as above petty things like rules, the corruption of the institution will not change.
Even the first page of the document (why call it a code when it is not a code?) displays what can only be described as a fit of pique about having to put out anything at all:
“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.”
This is laughable, of course, as it implies that the public’s issues with the justices are grounded only in the fact that the rules governing the Court’s conduct were not codified, as if the public had been searching in vain on the Court’s website for it. Rather, the issue is that two justices in particular — Samuel Alito and Clarence Thomas— have benefited from the largesse of wealthy Republicans who have business before the Court.
RELATED FROM PN: A brief primer on why Clarence Thomas doesn't give a damn about ethics
So, the impetus for the code was not that the Court suddenly saw the light about ethics. Instead, it’s designed to quash any outside inquiry into the Court — particularly congressional ones — by saying that any ethics concerns are taken care of now. As Steve Vladeck, an expert on the Supreme Court, wrote when the code was released, the code “reflects a rather remarkable lack of contrition or humility” on the part of the justices.
Even if the code contained strict, meaningful restrictions — which it does not — it’s undercut by the complete absence of enforcement mechanisms. It’s nothing but 15 pages of the justices saying, “Trust us, we’ll oversee ourselves,” when the whole problem is that they have failed to do so. Justice Thomas in particular should be allowed no grace in this arena, but instead, the code is shaped around letting him continue to skate going forward, without fear of consequences for his actions.
One weasel word gives away the game
The way in which the Court constructed the code to insulate Thomas is to modify the statements from the code of conduct that actually does bind lower court judges by adding one word — ”knowingly.” So, where other federal judges are subject to discipline if they “lend the prestige of the judicial office to advance the private interests of the judge,” the justices should not “knowingly” do so. Similarly, where lower court judges are prohibited from conveying or permitting others to convey the impression they are in a special position to influence the judge, the justices are only admonished not to do so knowingly.
This might seem like a mere semantics quibble, but it’s not. With each new ethics scandal he’s faced, Thomas has insisted that he simply did not understand he was obliged to report hundreds of thousands of dollars in gifts from billionaire pal Harlan Crow, despite having reported one private plane trip with Crow 26 years ago. Further, Thomas has insisted that hanging out with his good friend Harlan could in no way influence his votes on the Court because he was unaware that Crow had any business before the Court. Crow himself may not have been a named party in any cases that Thomas has ruled on, but he has overseen various conservative organizations that routinely file amicus briefs before the Court advancing conservative interests. (Alito, for his part, was recently exposed for taking a swanky Alaska fishing vacation with a Republican billionaire named Paul Singer who had business before the Court. He defended himself with claims that are perhaps even more absurd than those offered by Thomas.).
RELATED FROM PN: The breathtaking hypocrisy of Alito
So, that lone word, “knowingly,” gives Thomas an out. No matter what violations of this code he may commit, he just needs to say he didn’t knowingly lend the prestige of his position on the Court to advance his private interests. This requires the public to believe that Clarence Thomas, who has now been on the Court for 32 years, is a naive ingenue when it comes to understanding the Court's ethics and the policy goals of the incredibly wealthy.
To be perfectly clear, this is not an out afforded any other federal court judges. The term “knowingly” appears nowhere in the mandatory, binding code of ethics for lower court judges. Those judges aren’t able to claim they didn’t understand the rules, so their actions could not have knowingly violated the code. Only Supreme Court justices — the people who should most understand the importance of ensuring the courts are impartial — are afforded this luxury.
Writing over at The Nation, Elie Mystal explained the effect of another deployment of the weasel word “knowingly.” Justices are not to speak at partisan events sponsored by a political party but may attend fundraisers by nonprofit or legal organizations. However, they shouldn’t knowingly be a speaker or a guest of honor at fundraising events. But what to make of Justice Amy Coney Barrett’s turn as a featured speaker at the Federalist Society’s yearly gala? Mystal noted that the code of conduct defines a fundraising event as occurring only when proceeds from the event exceed the costs of the event or if donations are solicited during it. So, as long as Coney Barrett can pretend that she didn’t know donations would be solicited from well-heeled conservatives during a Federalist Society gala, she’s in the clear.
The code also doesn’t address problems stemming from justices’ membership in hyper-conservative groups like the Federalist Society. The code states justices “should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.” The Federalist Society most indeed discriminates on the basis of all of those things, working as it does to eradicate affirmative action and abortion, to push forward the interests of conservative Christians over all else, and to restrict or block immigration for people conservatives don’t like. But since the Federalist Society never explicitly says that they are a Republican organization, everything is just fine.
The code’s treatment of recusal issues is beyond parody
Finally, the code continues to give the justices the right to refuse to recuse themselves from cases despite having an interest in the case. The code for the lower court judges contains lengthy provisions about when a judge is required to remove themselves from a case when their impartiality would be questioned. This includes things like when the judge’s spouse is known by the judge to have an interest that could be “substantially affected” by the outcome of the case and when the judge has a fiduciary interest in a matter before the court. The Supreme Court code simply sweeps all that aside, asserting that recusal for them is much different than recusal for the lower courts because where lower courts can simply slot in a different judge when a conflict arises, the nine members of the court “sit together.” Therefore, having even one justice recuse “may undermine the ‘fruitful interchange of minds”’ necessary to the Court’s decision-making.
Apart from that statement’s breathtaking pomposity, the Court’s apparent problem here — that there are simply too few of them to lose a justice on a given case — can easily be fixed by adding more justices to the Court. But since this is a thing conservatives staunchly oppose, it is unlikely that would be the fix.
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The Court’s code also provides an out for justices who want to pal around with conservative groups who routinely file amicus briefs before the Court in which they urge for their favored outcome. It notes that the Court recently relaxed its rules to allow a “permissive approach” to amicus filings. Now that the Court made it much easier for conservative groups to file those briefs, amicus brief filing has exploded, with as many as 1,000 per term. And now that those briefs are so numerous, says the code, neither the identity of the amicus group or their attorneys can form the basis for a justice to recuse.
It would be trivially easy, given the Court employs over 500 people, to dedicate someone to the job of sorting out which briefs are written by what group and to advise the justices accordingly, rather than pretending that the highest court in the land somehow can’t keep track of who files what. But doing so would result in acknowledging that conservative groups file amicus briefs tailored to speak to specific justices and give them talking points for their decisions. Indeed, the Alito decision overturning abortion, Dobbs v, Jackson, borrowed language from amicus briefs.
The Court cannot police itself
In sum, the code of conduct has as many teeth as a retired hockey player. Violating it flamboyantly, as Thomas has for decades, results in no discipline or consequences whatsoever. The code also contains deviations from the lower court code that provide cover for Thomas to continue behaving as he always has, just by saying he didn’t “knowingly” do something. And finally, the code allows the conservative justices to say that the issuance of the code has already addressed the ethics issues, therefore backstopping their refusal to explain themselves to Congress.
It’s a code designed to quash dissent, not to bind the justices in any fashion. When you realize those are the real goals here, the code is a roaring success.
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