Lawmakers doubt Justices will enforce their own ethics code

Lawmakers worry that enforcement of the U.S. Supreme Court’s new code of conduct will fall on congressional shoulders.

In the halls of Congress Wednesday, legislators such as Rep. Mark Takano, D-Calif., questioned who would enforce the code and called it a “big problem.”

“Supreme Court members cannot remove themselves,” Takano said. “The accountability comes back to Congress. When there’s no remedy or enforcement, I don’t get the teeth.”

Similarly, Rep. Jim Banks, R- Ind., said he had not reviewed the ethics code yet but the potential “purely internal” process concerned him.

“We all are checked-and-balanced by people outside of our organizations,” Banks said. “My guess is there’s more of a role for Congress than they’ll take care of themselves.”

Monday, the Supreme Court published a 15-page code of conduct, the first-ever code in the court’s 234 years.

Media outlets including The Washington Post and ProPublica recently reported Justice Clarence Thomas’s personal relationship with billionaire real estate developer Harlan Crow, a conservative donor.

​​ProPublica also revealed Justice Samuel Alito did not recuse himself from a case with a hedge fund billionaire who earlier gifted the justice a private jet trip to Alaska. 

Justice Sonya Sotomayor also came under fire this year following accusations she leveraged public appearances to sell more autobiographies, according to the AP.

The new list of rules is in response to the perception that justices “regard themselves as unrestricted by any ethics rules,” according to a statement by the court.

All nine justices signed the 15-page document codifying principles of conduct.

Who rules the Court?

Rep. Jim Jordan, R- Ohio, said the code “is fine” because he preferred the legislative branch to not impose upon the judiciary.

While the Supreme Court never previously published a code of ethics or decorum, Article One of the U.S. Constitution accounted for legislative oversight of the judiciary. A simple majority in the House would impeach a justice– a subsequent two-thirds Senate vote would then remove the judge from the high court.

In 1804, the House impeached Justice Samuel Chase though the Senate later acquitted him, according to the Brennan Center for Justice. He is the only impeached Supreme Court justice.

Washington College of Law Professor Stephen Wermiel said the new code is an effort to “keep Congress off [justices’] backs.” 

The new code adapted the Code of Conduct for U.S. Judges to the specific demands of the Supreme Court, according to the high court’s commentary section.

Some of the standards outlined how justices “should avoid impropriety and the appearance of impropriety” and they “should not be swayed by partisan interests, public clamor, or fear of criticism.”

Monday’s code of ethics lacked an implementation mechanism which leaves justices to regulate themselves, Wermiel said.

“It’s not necessarily a great way to enforce an ethics code,” Wermiel said. “It’s not going to change the way they do things and that’s frustrating to many people who had hoped that they would come up with an ethics code that had some more teeth and enforcement mechanism.”

Wermiel said the Supreme Court would not realistically allow another entity to discipline their ethics, though some members of Congress wanted some form of outside oversight.

Rep. Steve Cohen, D- Tenn., said the court needs to impose “some type of sanctions,” to enforce the rules. He said “nobody” currently holds the court accountable.

“They just take care of each other,” Cohen said. “The Supreme Court’s not going to enforce against their own.”

The word “should” appeared 52 times in the new conduct code, while binding verbs like “must” and “shall” appear six and zero times.

Rep. Alexandria Ocasio-Cortez, D- N.Y., called the code “a fig leaf for the court.”

“I think of it as more of a [public relations] effort than anything that’s actually a serious measure,” Ocasio-Cortez said.