The Ethics of the US Supreme Court

Whatever happened to the new Ethics Code for the U.S. Supreme Court “promised” to Congress nearly three years ago by Justice Elena Kagan?

What she actually told the lawmakers was that Chief Justice Roberts was exploring a code for the only jurists not bound by the nearly 50-year-old regulations binding every other federal judge.

These past few weeks, the public’s attention has been focused on the role Ginni Thomas, the wife of you-know-who, played or may have played in the shenanigans leading up to the riot at the Capitol on January 6, 2021. The wife of the longest sitting judge on Scotus has long-been a political activist on the right and a zealous advocate of the effort to put Donald Trump back into office, despite the certified results of the 2020 election.

Could Ginni possibly be as utterly partisan as she is without ever chatting about her role with her hubby and best friend? Should the judge recuse himself from Jan.6-related cases, or even be impeached to avoid all appearances of impropriety?

But at least since the adoption of the Federal Judicial Conduct Code in 1973, people of all political persuasions have asked, “Why not the high court?” This is particularly irritating to many because Chief Justice Roberts has said Congress is without the power to impose a code on Scotus.

Court watchers are especially concerned with the frequent breach of these two norms:

 --Refusal to recuse from cases in which the judge has a clear conflict of interest, such as a financial stake in the outcome of matters by stock ownership, or current business dealing.

 --Taking whoopee cruises and other excessive gratuities for giving partisan speeches, which are kept secret from the public.  Consider Amy Barrett’s appearance at the (Mitch) McConnell Center in Louisville on Oct. 22, 2021 (which the press was forbidden to cover).

Justices of both political parties ignore ethical norms, to be sure. See, The New Yorker’s lengthy piece on the need for a code, 7-23-2015.  And follow the posts from Fix the Court.

 Notwithstanding Chief Justice Roberts’ claim that a Congressional bill would be unconstitutional, there have been efforts.  Sen. Elizabeth Warren put the Anti Corruption Act in the hopper in 2018, for example.  This would do such things as ban the ownership of individual stocks, and require posting the speeches given to private groups.

There is a big problem with a code for the supremes, though: How to enforce it. If a citizen suit to halt or enforce ethics were authorized, what court would hear it and would Scotus be forbidden to hear an appeal?

Or should the American people rely on the integrity of the justices themselves to do the “right thing” in fulfilling their oaths?  Unfortunately, up to now this sort of reliance has been misplaced.

Richard Shugrue is a professor emeritus at the Creighton University School of Law and a columnist for The Daily Record.