New Supreme Court ethics code ineffective, experts say | ET REALITY


The new supreme court code of ethics published Monday looks good on paper, legal ethics experts said. But only on paper.

Its lack of an enforcement mechanism means it will operate on the honor system, with individual judges deciding for themselves whether their conduct complies with the code. That makes it a paper promise, some experts said, with no transparent procedures for assessing whether it has been violated or the consequences if it has been violated.

“The main problem is how to give force to these rules, especially in light of the fact that there have been repeated violations of these same rules,” he said Amanda Frostprofessor of law at the University of Virginia.

Among those violations, he said, citing news reports, were participation in fundraising events and the do not reveal gifts by Justice Clarence Thomas and the use of Supreme Court staff members to help sell books by Judge Sonia Sotomayor.

At the center of much of the debate over the new ethics code is which conflicts require recusal and whether judges should decide those issues for themselves. Justice Thomas, for example, participated in cases about the 2020 election and its aftermath, even though Virginia Thomas, his wife, had participated in efforts to overturn the results.

The new code does not say what can be done to address situations like that, he said Renee Knake Jeffersonlaw professor at the University of Houston.

“There is no official process for an individual to file a complaint,” he said. “In reality, there’s not even a clear way for us to see how judges will enforce the law among themselves.”

Judges of the lower federal courts are subject to the Judicial Conduct and Disability Law, a federal law that allows people to file ethics complaints and establishes a mechanism for their review. He sanctions include public censures and reprimands. It does not apply to Supreme Court judges.

There was a grudging quality to an introductory statement that preceded the new code, one that almost admittedly was for show.

The judges had long voluntarily followed ethics rules that apply to other federal judges, he said.

“However, the absence of a code has led in recent years to the misunderstanding that the judges of this court, unlike all other jurists in this country, consider themselves free from any ethical standards,” the statement said. “To dispel this misunderstanding, we are publishing this code, which largely represents a codification of principles that we have long considered govern our conduct.”

After establishing the code itself, the court issued a comment indicating that it was not willing to change its methods. He cited a statement by Judge Tom C. Clark in 1969 that judges “must bear primary responsibility” for appropriate judicial behavior. The court added: “The same goes for judges.”

The document included a declarative phrase that disappointed many legal ethics experts: “Individual judges, and not the court, decide recusal issues.”

Not only that: judges, even when making their own decisions, do not seem to feel obliged to give reasons. They rarely explain when they disqualify themselves from cases, or when they do not.

To be sure, the comment also adopted business school jargon to suggest that he was still studying issues such as law enforcement. “To help judges comply with these canons,” it said, “the chief justice has directed court officials to conduct a review of best practices, based in part on the experience of other federal and state courts.” .

Those “best practices” may include how motions seeking the recusal of justices are handled in some state supreme courts. They are referred to the full court, meaning state court judges judge their colleagues. This can be uncomfortable and could lead to strategic behaviors and cunning.

But it may be preferable to allowing judges to violate the adage that no one should be a judge in his or her own case.

In 2011, in his last important statement On the ethics of judges, Chief Justice John G. Roberts Jr. wrote that judges could be trusted to make the right decisions.

“I have complete confidence in my colleagues’ ability to determine when recusal is warranted,” he wrote. “They are jurists of exceptional integrity and experience whose character and suitability have been vetted through a rigorous appointment and confirmation process.”

Recusal decisions by lower court judges are subject to judicial review, Chief Justice Roberts added. That is not true in the Supreme Court.

“There is only one important difference in the recusal process: there is no higher court to review a judge’s decision not to recuse in a particular case,” he wrote. “This is a consequence of the Constitution’s mandate that there be only ‘one Supreme Court.’”

Leaving other justices to guess at their colleagues’ recusal decisions could be unpalatable, Chief Justice Roberts wrote.

“In fact, if the Supreme Court were to review those decisions, it would create an undesirable situation in which the court could affect the outcome of a case by selecting which of its members can participate,” he wrote.

The new code, which did not affect that dynamic, did not solve anything, he said Gabe Rothexecutive director of Fix the Court, an advocacy group seeking greater openness at the Supreme Court.

“If the nine are going to publish a code of ethics without any enforcement mechanism and remain the only police of the nine, then how can the public trust that they are going to do anything more than just cover for each other, to hell with ethics?” he asked.

Part of the reason for issuing the new code, legal experts said, was to avoid congressional action. But James showslaw professor at Hofstra University, said lawmakers should not hesitate to provide the missing mechanism.

“If we waited for the Supreme Court to voluntarily cede the power of ethics enforcement to others, we would have a better chance of waiting for Godot,” he said. “Congress can and should seek meaningful mechanisms to enforce the code.”

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