Toothless attempt at accountability is a missed opportunity to restore public trust.

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From the Desk of Trevor Potter
Dear John,

When I saw the first headlines declaring the U.S. Supreme Court had adopted a new “Code of Conduct,” I allowed myself a moment of optimism. Could it be that months of revelations in the press about shockingly unethical behavior by some justices had finally prompted a change for the better? Had consistent pressure by good government groups like CLC ([link removed]) and others convinced Chief Justice John Roberts and his colleagues that the highest court in the land needed to set a better example?

My sense of hope faded quickly ([link removed]) as I read the new code. Rather than setting clear guidelines and establishing mechanisms to ensure enforcement and accountability, the document merely lays out principles that justices “should” follow but are not required to abide by.

Failing to explicitly require ethical behavior is bad. However, this code also lacks the one thing that is most needed to turn the page on a head-spinning year of scandal: A substantive system to enforce the ethics rules it introduces. There is no process laid out for investigating violations, no method for interpreting ambiguous principles in complex real-world situations, and no consequences for justices who simply refuse to follow the rules. It also lacks clear guidance for justices looking to follow the rules.

Every other branch of government has a dedicated body with ethics enforcement responsibilities.

The U.S. House of Representatives, for example, has the Office of Congressional Ethics (OCE), whose reputation is built upon its independence from members of Congress. The OCE is empowered to receive and investigate complaints of alleged wrongdoing before referring matters to the House Ethics Committee. Importantly, it acts in a transparent manner that allows the public insight into its investigations. Independent ethics commissions have also proven to be effective vehicles ([link removed]) for deterring and addressing corruption in state and local governments.

Instead of adopting widely used best practices or requiring the justices to follow the same rules as other federal judges, the Court is choosing to maintain its existing system of ethics self-policing ([link removed]) . This leaves the individual justices themselves in charge of deciding when they have a conflict of interest or when they should recuse themselves from a case.

What does this mean for the effort to bring about true ethics reform ([link removed]) at the Supreme Court? I, for one, believe the Court’s decision to release the code, as weak as it may be, has only occurred because of public pressure. Furthermore, it has been said over and over that Chief Justice Roberts is an “institutionalist,” ([link removed]) implying that he seeks to avoid actions that would undermine the reputation of the Court in the eyes of the public.

For these reasons CLC and others will continue pressing our case to Congress, which has the power to fix this problem, and to the Judicial Conference, which has broad policymaking authority in the federal court system. We recently sent a letter signed by CLC and 24 partners ([link removed]) to the chief justice, calling on the Supreme Court to establish an internal ethics enforcement body that would provide guidance and enforce the code. And in April, we sent a letter ([link removed]) to the Judicial Conference, asking that Justice Clarence Thomas be referred to the U.S. attorney general after our ethics team found reason to believe that he violated the Ethics in Government Act.

We’ve also found the press to be very receptive to our message, with opinion pieces by me and CLC Legal Counsel for Ethics Danielle Caputo published recently ([link removed]) by The Hill and Bloomberg Law.

Our goal is nothing less than the restoration of public trust in one of the most powerful government institutions. According to polling released by the Pew Research Center over the summer, favorable views of the Court have reached historic lows ([link removed]) . It is unreasonable to expect Americans to have faith in the Court’s decisions when there is no legitimate mechanism in place to prevent justices from being unduly influenced by special interests.

In a nation of laws, the ultimate arbiters of those laws ought to be held to the highest standards of conduct.
Sincerely,

Trevor Potter
President, Campaign Legal Center

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