In a move that some might argue is about a couple of centuries overdue, the Supreme Court of the United States has finally adopted its first-ever formal ethics code. Yes, after roughly 234 years of what one might generously call self-guided moral navigation, the Justices have decided it was time to get themselves a rulebook. Or at least a deeply worded suggestion manual.
The new code of conduct was unveiled with the kind of fanfare usually reserved for committee meetings on post office renamings, and includes a set of written standards intended to reinforce the integrity of the Court. It notably steers clear of any enforcement mechanism, which means that while the code expects Justices to behave, it does so in the same way your polite grandparent expects you to phone more often. Hopeful, yes. Binding, no.
This announcement comes in the wake of recent media scrutiny involving several Justices accepting lavish gifts and travel from wealthy patrons. Most prominently, Justice Clarence Thomas has been the subject of multiple reports detailing a long history of receiving undisclosed luxury trips and perks from Republican donor Harlan Crow. Thomas has defended his conduct by pointing out that the rules were unclear, a defense that will sound familiar to anyone who has ever tried to explain to a teacher that they were unaware the test was today.
Chief Justice John Roberts, in an introductory statement, assured the public that the Court takes its ethical obligations seriously, despite having functioned without a formal code for generations. The document insists that Justices should ‘uphold the independence and integrity of the judiciary’ and ‘avoid impropriety and the appearance of impropriety.’ These noble declarations are somewhat undermined by the fact that the Justices will continue policing themselves, a system known elsewhere as the honor code and famously effective among freshman dormitories and foxes in henhouses.
To be clear, lower federal court judges have followed a binding code of ethics for years now, but Supreme Court Justices, being the constitutional equivalent of unicorns with life tenure, have until now resisted calls for similar accountability. The new code suggests Justices should recuse themselves in cases where impartiality might reasonably be questioned, but ultimately leaves it up to the individual Justice to decide. At best, this is like asking someone whether they feel too biased to judge themselves fairly. At worst, it is exactly like that.
Legal ethicists and watchdog groups have responded with a mixture of restrained applause and heavy sighs. While some see the code as a necessary step in the right direction, others have noted that without penalties or an oversight body to enforce it, the code is more a strongly worded wish list than an actionable framework. Still, it does contain footnotes and Latin phrases, so it is at least comfortingly judicial in tone.
Whether this newfound commitment to ethics translates into actual change remains to be seen. But the Justices do now have a document they can point to the next time someone asks if there are any rules at all at the top of the judicial food chain.
As it stands, the highest court in the land has finally got its rulebook but not a referee in sight.