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We don’t hold out much hope that the U.S. Supreme Court will hear our unsolicited petitions for stronger ethical standards. But maybe, just maybe, the nation’s highest court will listen to its own members.
Justice Amy Coney Barrett made news this week for comments in support of a Supreme Court ethics code. Justice Elena Kagan made similar comments in September.
“I think it would be a good idea for us to do it, particularly so that we can communicate to the public exactly what it is that we are doing in a clearer way than perhaps we have been able to do so far,” Barrett said at an Oct. 16 event at the University of Minnesota.
As discussed repeatedly here in these pages, the lack of such a binding ethics code for the Supreme Court can erode public trust in the court as an institution. When it seems like the people interpreting the rules don’t have to follow rules themselves, that perception hurts the judiciary and ultimately hurts our democracy.
In the absence of a specific code, all nine current justices have said that they voluntarily “follow the substance” of the rules for other federal judges. Said another way: They ultimately get to decide what does and doesn’t apply to them.
It’s not a good look, and it hasn’t been since long before the recent reports — particularly about Justices Clarence Thomas and Samuel Alito — of undisclosed trips paid for by donors and individuals with business before the court. Justices across the ideological spectrum, nominated by both Democrats and Republicans, have accepted questionable or undisclosed trips and failed to recuse themselves in cases where they had a financial or personal connection.
Some, if not most, of this behavior would not be allowed for other federal judges (especially after a recent tightening of paid travel and hospitality rules), and it shouldn’t be allowed for Supreme Court justices. If anything, serving on the highest court in the land should come with higher ethical standards. And justices should have to follow them exactly, not “follow the substance” of them.
“All nine justices are very committed to the highest standards of ethical conduct,” Barrett said. “And we’re in agreement about what to do. And that we want to continue to follow the highest ethical standards.”
Kagan said an ethics code “would, I think, go far in persuading other people that we were adhering to the highest standards of conduct.”
Here is where we might lose Barrett and Kagan, at least partially, despite their otherwise encouraging endorsement of an actual code of ethics. Because they seem to think that the court is already committed to and following the “highest” ethical standards. The cumulative record of undisclosed trips and failed recusals would indicate otherwise.
Yes, a specific and binding code is needed for current and future Supreme Court justices. But the content of that code matters, too, if the public is going to be persuaded that the rules are meaningful. Rather than having to defend questionable trips, disclosure mistakes or failures to recuse, the court should head those issues off by enacting strict and definitive ethics rules that prevent them in the first place.
We said it in August, and it remains true today: “This is really about the American people having confidence that the rules apply to everyone, even the people who interpret the rules. It’s about making sure that those interpretations are not influenced by personal connections or financial incentives. It’s about safeguarding the public trust and legitimacy of the Supreme Court by heading off conflicts of interest, or even the appearance of conflicts, before they occur.”
Hopefully, the recent public comments from Barrett and Kagan indicate progress on an actual ethics code. Such a code, however, must include meaningful change if it is going to bolster trust from the American people.
