According to experts quoted in a November 14, 2023 article from The New York Times, the Supreme Court’s newly released ethics code will be largely toothless without an enforcement mechanism. The code, released on November 13, 2023, lays out rules of conduct for the nation’s highest court justices but does not establish any process for holding justices accountable.
Legal ethics experts quoted in the article said the biggest problem with the new code is that it lacks any clear way to enforce the rules or assess potential violations. Amanda Frost, a law professor at the University of Virginia, noted that the code comes after “repeated violations” of ethics rules by justices, including Clarence Thomas’ participation in fundraising events and Sonia Sotomayor’s use of staff to help sell her books. However, the code establishes no official complaint process or penalties for rule-breaking.
Renee Knake Jefferson, a law professor at the University of Houston, said “there is no official process for an individual to file a complaint” and “there is not really even any clear way that we can see how the justices will enforce it among themselves.” In contrast, lower federal court judges are subject to the Judicial Conduct and Disability Act, which allows for ethics complaints and consequences like public censure.
Experts also took issue with the code leaving recusal decisions up to individual justices without accountability or reasons given. This was highlighted by Clarence Thomas’ decision not to recuse from 2020 election cases despite his wife’s involvement in efforts to overturn the results. The code offers no guidance on handling such situations.
While the introduction acknowledged seeking to dispel public misunderstanding that justices are unbound by ethics rules, it also conceded the code was largely just formalizing existing practices. Comments suggested the high court was not eager for substantive changes either.
Some suggested state supreme court practices, where full courts review colleague recusals, could provide “best practices” but may prove awkward. Fix the Court executive Gabe Roth said the code amounts to justices “simply cover[ing] for one another.” James Sample of Hofstra University Law School argued Congress should act if the court won’t cede meaningful enforcement.
In conclusion, experts said the toothless nature of the Supreme Court’s new ethics code will maintain the status quo of justices policing themselves with no transparency or accountability.
Source: The New York Times