What are you gonna do about it?
If you were offered a $100,000 all-paid-for exclusive vacation by a multibillionaire, would you take it? It is certainly a hard offer to turn down, so difficult that when two US Supreme Court Justices, Justice Alito and Justice Thomas, were put in this exact “hypothetical,” they took the vacation without a second thought. Was this ethical, given their role on the Court? Well, have no fear, for they are not alone. Eight out of nine Justices have found themselves in some situation in which the ethical nature of their behavior was questionable at best. Now you might be saying, “But surely there is some way to hold these Justices accountable for using their positions of public service for private gain?” The answer is a resounding no.
Supreme Court Justices are the only federal judges in America not bound by any sort of enforceable ethics code, and they can only be held accountable via impeachment from the legislature. However, in principle, this reality shifted when the Supreme Court released its first-ever ethics code on November 13th, 2023. With history made, I sought to understand the inner workings of ethical principles embraced by the high court. In other words, I sought to find out exactly how this code functions, what behaviors it permits, and ways it can be enforced.
Methodology and Hypothesis:
My research is best classified as a phenomenological analysis with added legal conjecture. Since the Supreme Court’s code is based on an already existing and enforceable ethics code titled the “Code of Conduct for United States Judges” (or C.O.C.), my analysis compares it to key lines of the Supreme Court code. I note changes from the C.O.C. in the Supreme Court code, and offer an explanation as to why they might have made the changes. My research question(s) asked why the code was published now and what problems it actually solves. I hypothesized that the code was published now to increase sociological legitimacy, and solved the issue of enforcement mechanisms for Justice unethical behavior.
Findings:
My findings may surprise many readers, as I found that the Supreme Court code lacks teeth, and, while seemingly a way for Justices to be held to ethical standards, the reality is that the language prevents such enforcement. My evidence of this can be broken down into two main areas for the purposes of this blog, being changes made to recusal standards and financial disclosures.
1) Recusals
The data surrounding the changes to recusal standards is the most compelling within this analysis. Recusal refers to when a judge or justice should remove themselves from a case because someone may suspect they are no longer impartial. There were four changes made to the Supreme Court’s code that cannot be found in the C.O.C counterpart. They read:
| SCOTUS
Canon 3 Section B (1): A Justice is presumed impartial and has an obligation to sit unless disqualified
Canon 3 Section B (2): A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.
Canon 3 Section B (3): The rule of necessity may override the rule of disqualification
Canon 3 Section B (4): Neither the filing of a brief amicus curiae nor the participation of counsel for amicus curiae requires a Justice’s disqualification |
C.O.C.
No equivalent
Canon 3 Section C (1): A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned…
No equivalent
No equivalent
|
This may appear to be confusing, but the results of these changes are straightforward. The Justices have made it incredibly difficult to find any of them impartial, and this creates a situation where there is no need for recusal even if the situation appears compromising. This conclusion can be drawn from a step-by-step analysis of the additions. Section B(1) blatantly states a Justice is presumed impartial, which means that they are not held to the appearance standard, which relies on an assumption of guilt. This one line has already fundamentally set Justices at a different standard than their lower-level colleges. Section B (3) goes a step further, stating that even if a Justice may be compromised, the overall need for them to sit in on a case may triumph over their questionable circumstances. The Justices themselves defend these changes by arguing that the unique exchange of minds justifies this, however in reality it sets forward a troubling schema in which engagement is valued to a greater degree than ethical behavior.
2) Financial Disclosure
| SCOTUS
No equivalent
|
C.O.C
Canon 4 Section D (3): As soon as the judge can do so without serious financial detriment, the judge should divest investments and other financial interests that might require frequent disqualification. |
For this section, the Justices have removed a line originally included in the C.O.C, which states that a judge is responsible for divesting their financial holdings that may interfere with their ability to sit in on a case. This removal again follows the pattern outlined in which Justices are protected from behavior that they should be engaging in. Disclosing and abandoning financial holdings that could cause issues of appearance is the standard ethical principle for public officials, and yet here the Justices seem insulated from it.
Takeaway:
There are many more sections of the code that were changed, however, the point of all of the edits is the same. The code actually protects the Justices from being held accountable in nearly every way. On top of this, even if they were to somehow break this code, it includes zero discussion on how it actually be enforced, instead stating it will be internally managed. These facts go against both of my original hypotheses: while the code was successful in ending the public discussion surrounding Supreme Court ethics, if it were to become public knowledge that the code actually protects the Justices it is very unlikely sociological legitimacy would increase. Similarly, the code doesn’t solve the issue of enforcement or provide any clarity for future reference.
Overall, citizens should be very concerned that their judicial officials will not be held accountable for their behavior, and should call their legislatures to push for greater measures of accountability.
Xavier Ramirez is a graduating senior studying law and public policy and human resources management at the Paul H. O’Neill School of Public & Environmental Affairs at Indiana University. On campus, he has been involved with the IU Funding Board and the 102nd Board of Aeons. Post graduation, he hopes to begin his career and gain experience before returning to further his education in the law.
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