Tuesday Talk*: Does SCOTUS’ Code Of Ethics Fix Anything?

Revelations about Justice Clarence Thomas’ enjoyment of the largesse of his bestest pal Harlan, who suddenly realized how much he liked to hang out with Thomas only after he became a justice, among other things have given rise to calls for a Supreme Court Code of Ethics. Chief Justice John Roberts, hearing the sad laments of cable TV hosts and smelling the hot breath of Shelly Whitehouse on the back of his neck said, “Fine, Here ya go.”

Happy now?

“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.”

“Not new” is an understatement. They are the standard fare judicial ethics rules, as anodyne as they come, and reflect the same basic ideas that essentially all judicial codes of conduct provide. While they’re vague about how much of a payment a justice can pocket, there must of necessity be some latitude since one never knows what his mother’s house will cost or how large the money for winning a billionaire’s “prize” will be.

The one area where there is a notably distinction is in recusal, since there are only nine justices and no spares. Justices should, and must, be reluctant to recuse themselves lest they leave court unable to function. But that aside, it’s a remarkably routine code, and if it’s good enough for the rest of the judiciary, surely it’s good enough for the Supreme Court, right?

Experts in legal ethics gave the document measured approval.

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.”

It’s unclear why the Court’s recognition of public criticism is a good thing, given that at the time the Court decided Brown v. Board of Ed., the public was outraged with the Court for screwing around with good ol’ Plessy’s “separate but equal.” I guess it’s good when academics like it and bad when they don’t. But I digest.

So problem solved? Not exactly.

Critics of the new code have focused on the lack of enforcement mechanisms. If a justice violates the rules, there is no provision for any kind of penalty.

It’s really just about a penalty, but about a mechanism for challenge, investigation and determination. If you think a violation of the code is happening, who do you tell? Who figures it out? What is the process by which the allegation is raised and the due process with which the allegation is defended. And who decides whether there has been a violation and, if so, what to do about it?

This is a reasonable concern. It is, however, partly mitigated by the fact that the justices care about their reputations, and a justice who violates these rules is likely to take reputational damage. He or she can no longer claim that the relevant standards are unclear.  It is also the case that it’s hard to create a binding enforcement mechanism for the Court without intruding on judicial independence. These considerations may block enforcement mechanisms as rigorous as critics might want.

Whether the justices care enough about their reputations is very much part of the problem. If so, we likely wouldn’t be in the place we are now with Justice Thomas on the road again. But then, what possible mechanism could be crafted that would both be effective in addressing legitimate allegations of ethical violations that fall shy of “high crimes and misdemeanors,” since justices could always be impeached, that would not violate the Constitution and undermine the checks and balances necessary for the function of a tripartite government?

Ilya Somin tosses out some ideas.

Even so, it should be possible to have at least some enforcement mechanisms. For example, the justices might be able to agree on a system of fines for violations, adjudicated by judicial branch officials they themselves could delegate. I think Congress could also mandate at least some types of fines or other similar sanctions, as it has already done with the federal bribery statute (which applies to Supreme Court justices).

“It should” seems a bit too vague to be useful. Is there a mechanism by which an alleged ethical violation can be determined, defended and enforced which doesn’t violate the separation of powers short of impeachment? Can the Supreme Court delegate to lower court judges the power to decide? Can Congress, other than impeachment? If Supreme Court justices can’t be trusted to keep their noses clean, what can be done about it?

*Tuesday Talk rules apply, within reason.