Courts

Are We Ever Going To Get That Code of Judicial Ethics? Cause They Seem Relevant.

The U.S. Supreme Court continues to operate under no ethical guidance.

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(Photo by Jabin Botsford – Pool/Getty Images)

Hey, it’s Constitution Day. Read it. No, not the Federalist Society version. Read the one that includes the 14th Amendment. Yeah, that’s the good stuff.

Constitution Day seems like as good a day as any to point out that the people in charge of interpreting the Constitution, who are about to get back to work in a few weeks, operate under no ethical guidelines whatsoever. The Chief Justice has promised to release some ethical guidelines for the U.S. Supreme Court, which seems relevant given that one of its members is accused of trying to rape somebody and another long-serving justice was accused of sexual harassment before moving onto his career as a mascot at agenda-driven Republican events. I believe Congress has the authority to impose ethical guidelines upon the Court, but given that the Court gets to decide whether Congress has that authority, the cleanest and least Constitutionally destructive way to bring some ethical accountability to the highest court in the land would be for the Court to do it itself.

Roberts has promised to do this. Elena Kagan has suggested guidelines are being considered. And still nothing has happened. Fix The Court put it this way, today:

“The highest court should not be held to a lower standard,” FTC’s Gabe Roth said. “I’m pleased that the justices seem open to adopting a formal code of conduct, as the rest of the federal judiciary did several decades ago, and I expect one to be made public in short order. If not, Congress should intervene and write one for them.”

In addition to the recent headline-inducing scandals, each of the justices either has contravened the federal recusal statute, which does apply to the justices, or has flouted the Code of Conduct for U.S. Judges, which covers all non-SCOTUS Article III judges and which the justices, on several occasions, have said they “consult” or “follow.”

For example, Roberts has failed to recuse from several cases in which companies whose shares he owned were involved; Justice Clarence Thomas has spoken at partisan events and has been flown around the country by major political donors; Justice Ruth Bader Ginsburg spoke out against a presidential candidate; Justice Stephen Breyer has missed recusals and has been flown around the country by major political donors; Justice Samuel Alito has missed recusals and has spoken at fundraisers for partisan organizations; Justice Sonia Sotomayor failed to recuse from a case involving her publisher, which paid her nearly $2 million in advances; Kagan has missed recusals; Justice Neil Gorsuch spoke at a partisan event (at Trump Hotel, no less); and Justice Brett Kavanaugh accused Democrats of conspiring against him during his confirmation hearing.

At a time when Mitch McConnell has unmasked the Court as a purely partisan policy-making institution, you’d think Roberts would be interested in at least the presentation of impartiality. Or at the very least, you’d think he’d be interested in taking a strong stand against sexual harassment in the judiciary. Or, you know, something. Any code of conduct coming out of a Republican white man who is more interested in protecting Brett Kavanaugh than holding him accountable will be lacking, but it would be a start.

This week is the Judicial Conference. I really hope Roberts has some news for us about the standards of his institution by the end of it.

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Where’s the Ethics Code, Chief? [Fix The Courts]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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