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What the Supreme Court’s New Ethics Code Lacks

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The Supreme Court’s new ethics code is a nod at the public pressure the court is facing. Beyond that, it will do little to change the justices’ behavior.

First, here are four new stories from The Atlantic:

An Unstable Structure

Don’t worry, the Supreme Court said to America yesterday. Though it may not be enforceable, the Court at least has a formal code of conduct now. The Court has been facing an onslaught of public pressure after reports that justices, particularly Clarence Thomas, had engaged in behavior that an average person could deem improper for representatives of the highest court in the land, such as receiving undisclosed gifts from wealthy conservatives. This code, the first in the Court’s history, is signed by all nine justices, and lays out “rules and principles” for the justices’ behavior. Its publication is an acknowledgment that the public is dissatisfied with the Court, but beyond that, it is more symbolic than anything else.

The 15-page document opens with a paragraph-long statement emphasizing that the rules contained within it are largely not new. Their codification is an attempt to “dispel” the “misunderstanding that the justices of this court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.” The code does not explicitly restrict any of the activities, such as undisclosed gifts and travel, that have been drawing attention to the justices in recent months, and its guidelines on recusals in the event of potential conflicts of interest are vague. (A progressive group noted that the document includes should 53 times and must just six.) It also doesn’t acknowledge the existence of any current or past misbehavior, Noah Rosenblum, an assistant law professor at NYU, told me. But the introduction of the code, he said, “does suggest that, in fact, the pressure is getting to the Supreme Court, which, if you believe that the Supreme Court has gone rogue, is a really useful and important thing to know.”

The Supreme Court has long operated, as the justices explain in the opening statement of the code, according to “the equivalent of common law ethics rules,” using guidelines derived from a variety of sources, such as historical practice and the code that applies to other members of the federal judiciary. The idea of the Court formalizing its ethics guidelines had been percolating for a while. Back in 2019, Justice Elena Kagan said at a budget hearing that John Roberts was exploring the idea of establishing a code of conduct for just the Supreme Court. In 2022, a group of legal scholars wrote an open letter to Justice Roberts urging the Court to adopt such a code. “We simply believe that a written Code, even if primarily aspirational, would have a broad salutary impact,” the professors wrote.

But public pressure, including from lawmakers in Congress, picked up starting in the spring, when ProPublica released the first in a series of stories about Clarence Thomas’s close relationship with the Republican billionaire Harlan Crow. Other outlets soon published reports on the lavish gifts and trips Thomas received from wealthy businessmen and donors. As Michael C. Dorf, a law professor at Cornell, told me, Thomas is seen as the “violator in chief.” But, Dorf noted, other justices’ behavior has been called into question as well. Those wishing to present this as a bipartisan issue, Dorf said, have also pointed to Justice Sonia Sotomayor, whose staff reportedly urged libraries and colleges to buy her books. And conservative Justice Samuel Alito took a luxury fishing trip with Paul Singer, a billionaire who had cases before the Court in following years. (The Supreme Court responded that it works with Sotomayor and her staff to ensure compliance with ethics guidance during book events. Alito said that he never discussed Singer’s business and that he was unaware of his connection to the cases.)

My colleague Adam Serwer, who covers political and legal issues for The Atlantic, told me that “much of the conduct that has exposed the justices as partisan actors” would not seem to be prohibited by these guidelines. The code is not a move toward stricter ethics rules; rather, Adam argued, it might have the opposite effect: “It is an attempt to remove any motivation for Congress to impose restrictions on the Court that have actual teeth.” Adam added that the only apparent punishment for breaking the rules will be public shame—of which the Court has seen plenty lately. As Adam reminded me, “public outrage and tarnishing of the Court’s prestige” is why the justices likely felt pressured to adopt the code in the first place.

The American public has soured on the Court in recent years, in the midst of ethics scandals and controversial decisions on topics such as abortion, student loans, and affirmative action. According to a Pew Research Center poll from July, voters are more likely to see the Supreme Court as conservative than they were a few years ago, and just 44 percent of Americans now have a favorable view of the Court—the lowest since the survey began, in 1987. The new code of conduct is not likely to change things. For those concerned that the justices’ behavior compromises the integrity of the Court, “there’s nothing in this code of ethics that should reassure them,” Rosenblum told me.

The Supreme Court is an anomaly in America’s justice system; other judges have to adhere to strict, enforceable ethics rules. To understand the ethics mechanisms ruling most American judges, picture a three-legged stool, Rosenblum suggests. Leg one is a code of conduct, leg two is an advisory body, and leg three is an enforceable disciplinary procedure. The Supreme Court has long had no such stool. Now, with its new code of conduct, it has one leg. That does not make a very stable structure.


Today’s News

  1. The House passed a short-term funding bill to successfully prevent a government shutdown.
  2. Al-Shifa Hospital says that it has buried more than 170 people in a mass grave. According to the United Nations, only one of 35 hospitals in the Gaza Strip is reportedly operational.
  3. A “March for Israel” took place in Washington, D.C., to protest rising anti-Semitism and demand the release of hostages taken by Hamas.

Evening Read

Painting by Debra Cartwright. Source: University of Chicago Library, Special Collections Research Center.

How Black Americans Kept Reconstruction Alive

By Peniel E. Joseph

The Civil War produced two competing narratives, each an attempt to make sense of a conflict that had eradicated the pestilence of slavery.

Black Americans who believed in multiracial democracy extolled the emancipationist legacy of the war. These Reconstructionists envisioned a new America finally capable of safeguarding Black dignity and claims of citizenship. Black women and men created new civic, religious, political, educational, and economic institutions. They built thriving towns and districts, churches and schools. In so doing, they helped reimagine the purpose and promise of American democracy …

Black Reconstructionists told the country a new story about itself. These were people who believed in freedom beyond emancipation. They shared an expansive vision of a compassionate nation with a true democratic ethos.

Read the full article.

More From The Atlantic

Culture Break

illustration with black-and-white still of TV character Louise Jefferson alternating in quadrands with blue-gray gradient

Read. “Sitcom,” a new poem by Jericho Brown.

“Since, her long hair curled, / Combed out, and pushed up / Into a volume so thick, you felt / Both the power of an Afro and / The requirement of a relaxer”

Watch. Nathan Fielder’s newest show, The Curse, is weird and off-putting, yet intensely compelling (streaming on Paramount+ with Showtime).

Play our daily crossword.

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Katherine Hu contributed to this newsletter.

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