Democratic lawmakers are condemning the Supreme Court for its fanfare over its supposedly new code of conduct released Monday, saying that the code is essentially “useless” because it has no binding enforcement mechanism.
The nine-page code, accompanied by five pages of commentary signed by the nine justices, comes after a barrage of stunning revelations of deep corruption on the bench. The code gives basic guidelines on avoiding “impropriety and the appearance of impropriety” and on what events and political activities a justice can participate in.
But, as lawmakers and judiciary experts have pointed out, the code is nonbinding and makes no mention of any form of enforcement other than the current reliance on the court’s internal legal counsel; if a justice were to violate the code, there isn’t a way to reprimand them or even a way to formally determine if they violated the code to begin with. In other words, Supreme Court justices remain the only federal judges in the country not subject to a binding ethics code.
Senate Judiciary Committee Chair Dick Durbin (D-Illinois) said that the code is a “step in the right direction,” but still totally insufficient to address the issues that he and other Senate Judiciary Democrats have been trying to resolve in recent months.
“It may fall short of the ethical standards which other federal judges are held to and that’s unacceptable,” Durbin told Politico. “The code of conduct does not have a meaningful mechanism to hold justices accountable. It leaves a wide range of discretion for individual justices, including decisions of recusal of sitting cases.”
Sen. Sheldon Whitehouse (D-Rhode Island), one of the most vocal advocates for Supreme Court reform in Washington, similarly raised concerns about a lack of an enforcement mechanism. “The question is enforcement: where do you file a complaint; who reviews it; how does fact finding occur; who compares what happened to what’s allowed?” Whitehouse wrote in a post on social media.
Whitehouse raised examples of Justice Clarence Thomas failing to report his $260,000 RV that was underwritten by a wealthy friend or failing to answer questions on his wife’s role in the far right effort to overturn the 2020 election. The examples, he said, point to the “gaping hole” in the ethics code, as even if these actions were in direct violation of the code, there would be no way to correct them.
Court experts said it is clear that justices are only seeking to quash discontent with corruption on the Court without actually having to face consequences or restrict their behavior.
“The justices are clearly reacting to recent public criticism by formally adopting this code,” said Steve Vladeck, CNN Supreme Court analyst and University of Texas law professor. “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. 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.”
Progressive lawmakers voiced similar concerns.
“Unfortunately, this so-called ‘ethics code’ amounts to nothing more than virtue signaling amid mounting allegations of Supreme Court corruption spanning decades,” said Rep. Barbara Lee (D-California). “SCOTUS needs a robust and enforceable code of ethics — not a nonbinding set of symbolic gestures.”
Sen. Elizabeth Warren (D-Massachusetts) said that the code is toothless. “The Supreme Court’s new code of conduct is useless without enforcement and will do nothing to restore trust after serious ethics failures. Like every other federal court, the Supreme Court needs a binding code of ethics. If the Justices won’t step up, Congress must act,” she wrote on social media.
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