The Supreme Court Missed the Mark With Unenforceable Ethics Rules

As first appeared in Newsweek

By Aron Solomon

On Monday, the Supreme Court announced that it has adopted a binding code of ethical conduct for the first time, following a series of allegations of ethics lapses. The code includes five canons of conduct, which are not new, but the lack of a published code “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,” the statement added.

Before Monday, the Supreme Court was the only judicial body in the United States that didn’t have a formal code of ethics. As lawyer and Supreme Court observer Adriana Gonzalez points out, “If the goal of the Supreme Court is that the public will believe, to a far greater extent than they do today, that the Court is always laser-focused on independence and integrity, a code of conduct is an important step in that process.”

The general code of conduct for United States Judges, which was initially adopted in 1973, includes five ethical canons governing issues such as recusal, judicial integrity and impartiality, and permissible extra-judicial activities, and provides federal judges with guidance on the performance of their official duties.

The problem—and it has been a massive one—is that the Code has never been applied to the members of the nation’s highest court. That’s a truly logic-defying legal and historical anomaly.

The lack of a formal code of ethics for Supreme Court justices has been a topic of debate for years, and recent revelations concerning luxury vacations and other perks that justices have received from groups and wealthy individuals ignited a debate this year. Lawyers overwhelmingly want the US Supreme Court to adopt a formal ethics code, but they have been divided on the question of who should write it. As recently as five months ago, Chief Justice John Roberts said in a speech that he intended to make sure that the court “adheres to the highest standards of conduct.”

The new Supreme Court code requires justices to “uphold the integrity and independence of the judiciary” and “avoid impropriety and the appearance of impropriety in all activities.”

The major points of the new Supreme Court code of ethics include:

1. Recusal Standards:

The code states that a Justice should disqualify themselves in any proceeding in which their impartiality might reasonably be questioned.

2. Acceptance of Gifts:

The code emphasizes the importance of avoiding improper outside influence on the justices.

3. Travel and Outside Income:

This aims to ensure that the Justices adhere to the highest ethical standards in accepting travel, gifts, and outside income.

4. Equity Partnerships:

The code prohibits a justice from serving as an equity partner in a law firm that appears before the court on behalf of a party to the proceeding unless the court has received written assurance that the income from Supreme Court litigation is permanently excluded from the person’s compensation.

5. Rule of Necessity:

The rule of necessity may override the rule of disqualification. In other words, the highest priority is the normal work of the court.

4. Equity Partnerships:

The code prohibits a justice from serving as an equity partner in a law firm that appears before the court on behalf of a party to the proceeding unless the court has received written assurance that the income from Supreme Court litigation is permanently excluded from the person’s compensation.

5. Rule of Necessity:

The elephant in the judicial (and hopefully judicious) room is that the code doesn’t say what will or could happen to justices if they violate said code.

And this is where things get sticky fast. Because if this incarnation of the court was skilled at moral, legal, and ethical self-regulation, we simply wouldn’t need the new code. So, a code that has no teeth or has a hidden layer of teeth that we’re only going to find out one day when we uncover the next hidden scandal involving one or multiple justices, is disappointing from the perspective of any observer of the court, who believes that a code of conduct is long overdue.

Where we go from here is into the great unknown, which isn’t great for several reasons, foremost among them that this code is more than likely a public relations creation. As someone who spins on the daily, I can assure you it just has that scent:

“Okay. Let’s put out a (pretty long) code of conduct, then massage the post-release messaging based on how deeply (or not) people care and what they’re saying about it. But don’t worry—this won’t actually DO anything; you can just carry on as usual.”

Perhaps an overly skeptical analysis, but from the beginning of this charitably “unique” assemblage of justices, many of us have run out of slack to give this court. If the months ahead prove us wrong and the next big ethical scandal involving one of the justices actually sparks conversations with a viable path to removal because of this new code, we’d be happy to be proven wrong.

About Aron Solomon

A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the Editor-in-Chief for Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, YouTube, NewsBreak, and many other leading publications.