New United States Supreme Court Ethics Code Does Little to Solve Ethics Lapses

The United States Supreme Court recently issued an ethics code that is to guide the conduct of its justices.  There have been calls for the Court to issue such a set of ethics rules for some time, but recent revelations about the questionable ethical conduct of some of the justices apparently forced the Court to act.  Some of these problems included the fact that Justice Thomas’ wife worked to overturn the 2020 election just prior to the January 6 Capitol riot, and he continued to participate in cases relating to the riot and the election.  He also failed to disclose luxury travel provided by a wealthy conservative donor, payment of private school tuition for a grandnephew he was raising, a real estate deal involving the purchase of his mother’s house, and a loan that allowed him to purchase an elaborate RV.  Justices Alito and Gorsuch have also failed to disclose financial favors received from wealthy and powerful individuals with cases before the Court.

Clearly, the situation was so bad that the Court had to take some action to at least create the appearance that it could police itself.  However, there are still serious questions concerning how the new ethics code will be put into effect or enforced.  Exactly what activities would violate the ethics rules, and who would decide a violation actually occurred, also remain unclear.  There are no specific restrictions on gifts, travel or real estate deals.  In somewhat general terms, the new code cautions justices to avoid activities that detract from the dignity of their office, interfere with the performance of their official duties, reflect adversely on their impartiality, or lead to frequent disqualification.  Justices are also prohibited from allowing personal, political, or financial relationships from influencing their official conduct or judgement.  Justices are also barred from being a speaker, guest of honor, or being featured on the program, of certain fund raising events.

The new code also bars justices from speaking at events promoting commercial products or services, but includes an exception for events to sell books written by the justices themselves.  Obviously, any book deal for a US Supreme Court justice could be worth millions of dollars.  Also, any justice writing a book would have the resources of the Court to do so, including a team of law clerks to do the research and actual writing.

Ethics codes govern the conduct of judges in the lower federal courts.  Those rules do not bind the Supreme Court because of its special constitutional status.  The primary difference between the Supreme Court’s new code and the code that governs other federal judges concerns recusal.  The justices stated in commentary accompanying the new code that they must be wary of recusing themselves from cases because they cannot be replaced when they do so, unlike the judges in lower federal courts.  Thus, a justice may decide against recusal even when facing a very real ethics issue.

While some members of the legal community have praised the new ethics code as a small step in the right direction, serious issues remain.  First, when and how will the code be put into effect?  Further, how will it be enforced?  Finally, given the fact that the code’s commentary specifically cautions against recusal, will it really make any difference?  Until these questions are addressed, the enactment of the new code has accomplished little, if anything.

James S. Friedman, Esq., is a criminal defense attorney based in New Brunswick, New Jersey. Mr. Friedman represents defendants in criminal cases in the New Jersey Superior Court in all counties, all New Jersey municipal courts, and the United States district courts in New Jersey and New York City. If you have a criminal charge in one of these courts, start planning your defense by contacting Mr. Friedman to discuss your case.





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