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All federal judges have to follow a code of conduct. Except for the members of the U.S. Supreme Court. These nine justices don’t have to follow the rules that guide the conduct of the nearly 1,800 other federal judgeships. And, they don’t have their own code of conduct.
This was a problem long before recent revelations that two justices – Clarence Thomas and Neil Gorsuch – engaged in behavior that raises ethical concerns.
Thomas, who has served on the court since 1991, has accepted extravagant trips from a Republican mega-donor who also bought property from the justice, including his mother’s house, without disclosing them, according to ProPublica reporting. Thomas said he was told that he did not have to report the trips and that his intent is “to follow this guidance in the future.”
This is wholly inadequate.
This week, Politico reported that just days after his confirmation to the court, Gorsuch sold property to the head of a law firm with business before the court. He reported the income he received from the sale but did not disclose the purchaser.
The Supreme Court, unlike lower courts, was created by the U.S. Constitution, not Congress. So, some court supporters argue, lawmakers cannot impose rules on the court.
Still, Congress has tried various times since 1973 to impose a code of conduct on the Supreme Court. Those efforts have failed.
Now, Sen. Angus King, along with Republican Sen. Lisa Murkowski of Alaska, have launched a new effort to compel the Supreme Court to craft and follow a code of ethics.
The senators introduced a bill on Wednesday that would direct the court to implement such a code within a year.
“Let me be clear: virtually every judge in the country, every judge in the country, whether it’s in a state or the federal system, has to follow the canons of ethics,” King said during a video press conference on Wednesday. “In Maine, we have them and for the entire federal judiciary, except the Supreme Court. And I don’t really understand that exception.”
“And so, what we’re really talking about today is simply bringing the Supreme Court into alignment with the judicial process in the rest of the country,” he added.
This work should be simple: The court could simply extend the code of conduct for U.S. judges to cover the Supreme Court.
“If I were doing the drafting, I would just have a one sentence addition to the current federal judicial code of ethics saying, ‘This applies to the Supreme Court, as well as every other in the federal system,’” King said. “This is a carefully worked-out set of ethical guidelines or standards that have been in place for many years, have been worked through by judges across the country and by the various officials of the court system, so defining the standards isn’t tough. They’re already there. … This isn’t a challenging drafting we’re giving them a year. It probably could be done in a week, and I think that’s what’s really important here.”
I really should be that simple, but it likely won’t be.
First, the bill needs to pass Congress. Republican Leader Mitch McConnell has already suggested that a fix like this isn’t necessary. So has Chief Justice John Roberts.
The public would seem to disagree. Even before the potential ethics problems with Thomas and Gorsuch were in the news, the court ranked low in terms of public perception. A Gallup poll late last year found recorded the highest disapproval of the court in two decades.
At a time when many of the court’s rulings are being questioned, the ethics and potential conflicts of interests of its members shouldn’t be up for debate.
If the court does not want Congress to interfere, it should impose clear and transparent ethics rules on itself. Following the code of conduct for all other federal judges is a simple, and overdue, solution.