SCOTUS waits 234 years to adopt a Code of Conduct

 Adam Liptak writing for The New York Times:

The Supreme Court issued an ethics code after a series of revelations about undisclosed property deals and gifts intensified pressure on the justices to adopt one.

In a statement, the justices said they had established the code of conduct “to set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the members of the court.” Left unclear was how the rules would be enforced, and the court said that it was still studying how any code would be put into effect.

“For the most part these rules and principles are not new,” the court said, adding that “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.”

Revelations of lavish vacations and high-end gifts have cast a light on how few ethics rules bind the justices, but under the new code, it remains unclear which of those activities would violate the rules — and who would decide.

The code, laid out over nine pages, does not place specific restrictions on gifts, travel or real estate deals. But it does caution the justices that they should not take part in outside activities that “detract from the dignity of the justice’s office,” “interfere with the performance of the justice’s official duties,” “reflect adversely on the justice’s impartiality” or “lead to frequent disqualification.”

The rules also prohibit justices from allowing “family, social, political, financial or other relationships to influence official conduct or judgment.” The document cites examples of when justices must recuse themselves from a case, including when they have a “personal bias” or a financial interest.

The Supreme Court announced on that it had issued an ethics code for the justices after a series of revelations about undisclosed property deals and gifts intensified pressure on the court to adopt one. Here are the ethics rules.

Experts in legal ethics gave the document measured approval.

“This is a small but significant step in the right direction,” said Amanda Frost, a law professor at the University of Virginia. But she said she was troubled by the court’s failure to acknowledge past transgressions and the lack of a mechanism to enforce the new restrictions.

Daniel Epps, a law professor at Washington University in St. Louis, said the new code reflected, if nothing else, a recognition that the court had to act. “It’s good that they did this,” he said. “It’s good that they feel some obligation to respond to public criticism and act like they care.”

But, he added, “in terms of the content, it doesn’t seem to move the ball much.”

Although an ethics code binds judges in the lower federal courts, those rules have never governed the Supreme Court because of its special constitutional status. In a letter to lawmakers this spring, Chief Justice John G. Roberts Jr. said the court “takes guidance” from the ethics code for other federal judges and shared a statement signed by all nine justices that insisted that their existing rules were sufficient.

The main difference between the new code and the one that applies to other federal judges is in its treatment of recusal. In commentary the court issued along with the code, the justices said they must be wary of disqualifying themselves from cases because — unlike judges on lower courts — they cannot be replaced when they do.

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“Because of the broad scope of the cases that come before the Supreme Court and the nationwide impact of its decisions,” the commentary said, the provision on recusal “should be construed narrowly.”

In recent months, a few justices, including Elena Kagan, Brett M. Kavanaugh and Amy Coney Barrett, publicly voiced support for an ethics policy. In wide-ranging remarks at Notre Dame Law School in September, before the court’s current term began, Justice Kagan said she believed an ethics code “would, I think, go far in persuading other people that we were adhering to the highest standards of conduct.”

In mid-October, Justice Barrett echoed that sentiment during an interview at the University of Minnesota, saying, “It would be a good idea for us to do it, particularly so that we can communicate to the public exactly what it is that we are doing in a clearer way.”

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