What’s wrong with the Supreme Court’s ethics rules?
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The Supreme Court announced yesterday that the justices will subject themselves to a code of ethics. It is, in some ways, welcome news.

But the code comes with a whiff of condescension. The justices only took this step, they explain, because of some “misunderstanding” by the public about their probity. It’s not accountability — it’s the appearance of accountability. The Supreme Court has been the only court in the country without a binding ethics code. Now it has one of the country’s weakest. These new rules are more loophole than law.

The idea behind an ethics code is simple: nobody is wise enough to be the judge in their own case. Yet the justices will still judge themselves. There is no mechanism to enforce the code — no arbiter to enforce, apply, or even interpret these rules. And the Brennan Center and other reformers have urged a variety of possible ways to do this. One idea is to bring in retired judges to advise on or even decide issues. There are other ideas as well. This code adopts none of them.

The rules themselves are weak. Consider recusal, when justices step aside from considering a case. The justices took the rule that applies to lower court judges but then inserted a handful of new loopholes, including one that could be so big that it swallows the rule — basically allowing a justice to disregard a required recusal if they think their vote is needed in the case. And the financial disclosure rules haven’t tightened at all — a significant shortcoming, since the justices have proven themselves troublingly adept at sidestepping

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the current rules, whether for RVs, tuition, fishing trips, or real estate deals.

If the Court is to hold itself to the highest ethical standards, as Chief Justice John Roberts has repeatedly said is his aim, the justices must do more. Real financial transparency. Recusal whenever a conflict of interest creates the appearance of bias. Most importantly, an external body to tell us when a justice has fallen afoul of the rules. That’s what checks and balances are all about.

Still, this is a big moment. Public trust in the Court has collapsed to the lowest level ever recorded. The Senate Judiciary Committee was on the verge of issuing subpoenas to Harlan Crow, Clarence Thomas’s benefactor. Lawmakers were making noise about passing an ethics code if the justices did not act first. Public pressure can matter.

There were hints in the explanatory essay that accompanied the rules that there may be more to come. Let’s hope so. The Supreme Court faces a historic crisis of legitimacy, one of the justices’ own making. Yesterday’s code of ethics is the Court’s opening bid — the bare minimum to pacify an angry public. Let’s keep up the pressure.





State Regulation of AI

As federal legislators try to figure out how to regulate artificial intelligence, they can look to the states for inspiration. Over the last five years, 30 states have enacted more than 50 laws that address AI in some way. Our new resource highlights emerging trends at the state level that could inform Congress’s approach. “States are leading this work, and their ideas belong in the conversation alongside those of Congress and the EU,” Lawrence Norden and Benjamin Lerude write. Read more

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A Chance to Defend the Freedom to Vote

This year, Congress reintroduced the Freedom to Vote Act, a major pro-democracy bill that would protect and expand access to the ballot, prevent partisan meddling in elections, and prohibit partisan gerrymandering. Amid persistent efforts to undermine American democracy and restrict political participation, we need strong solutions like these now more than ever. A new Brennan Center explainer breaks down what the bill would do to keep elections free and fair. READ MORE

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Protecting Election Workers

Earlier this month, a Senate hearing examined the ongoing physical and cyber threats against the people who help run elections. Given the wave of harassment and intimidation they have faced, it’s no surprise that 11 percent of election officials plan to leave their jobs ahead of the 2024 election, according to a Brennan Center poll

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. Elizabeth Howard, who testified before the committee, urged lawmakers to implement key election security measures to protect election officials and stop the high turnover in the field. Read more

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Coming Up

VIRTUAL EVENT: How Will AI Affect the 2024 Election?

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Tuesday, November 28, 6–7 p.m. ET



2024 will bring the first presidential election of the generative AI era. As artificial intelligence produces output that is increasingly difficult to distinguish from human-created content, how will voters separate fact from fiction? The Brennan Center and Georgetown University’s Center for Security and Emerging Technology are convening experts to examine these and other critical questions

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about how AI might impact election security, voter suppression, election administration, and political advertising and fundraising.

Join us for this live virtual panel that will explore what steps the government, the private sector, and nonprofits should take to minimize the possible dangers while harnessing the benefits of these new and powerful tools. RSVP today

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News

Elizabeth Howard on the fentanyl-laced letters sent to election offices // ASSOCIATED PRESS

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Michael Li on the challenge to Detroit’s legislative districts // BRIDGE MICHIGAN

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Sean Morales-Doyle on poll worker turnover since 2020 // USA TODAY

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Eliza Sweren-Becker and Tom Wolf on new House Speaker Mike Johnson’s support for the “independent state legislature theory” // HUFFPOST

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