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Justice Samuel Alito doesn’t think Congress has the authority to set ethics requirements for the Supreme Court. That almost misses the point.
To us, the most important question isn’t whether lawmakers can regulate the high court (though a plain reading of Article III, Section 2 of the U.S. Constitution would seem to indicate they can at least in some instances). Rather, the fundamental question is whether the American people deserve assurances that justices are not personally profiting from their lofty public role — and that their consequential rulings are not impacted by personal or financial considerations. Everyone, including the current nine justices on the court, should be able to answer that question with a resounding yes.
We believe that Congress has the constitutional authority to enact standards for the court in this regard. There are some prominent legal minds who agree, and similarly there are some who disagree. Either way, lawmakers unfortunately look unlikely to test this issue, with Republican opposition all but surely dooming current legislative proposals. But that doesn’t preclude the court from acting on its own, as it should, to shore up its ethical requirements.
Strong, clear and evenly applied ethical standards are critical to fostering and maintaining trust in public institutions. Or, at the very least, such standards can help prevent dwindling trust from slipping even further.
Each branch of the federal government has work to do on this front. The fact that Congress needs to do a much better job policing itself on stock ownership, and that the executive branch requires a similar effort to address conflicts of interest and the perception of conflicts, should in no way excuse the court from making its own much needed update.
In the Supreme Court’s case, sadly, there isn’t even a binding code of conduct to update. As we’ve discussed previously, the justices don’t have to follow the rules guiding the conduct of other federal judges, and they don’t have their own code of conduct. All nine current justices have said that they voluntarily “follow the substance” of those rules for federal judges, which is a nice way of saying they basically don’t have to do much of anything if they don’t want to.
This was a problem even before the recent reporting about apparent conflicts and less than full disclosure involving Justices Clarence Thomas and Neil Gorsuch. Justices appointed by both Democrats and Republicans have availed themselves of the weak, if not non-existent, requirements — particularly relating to disclosing travel expenses.
At its core, this issue isn’t about Alito and a fishing trip involving Leonard Leo or Thomas and his dizzying connections to billionaire Republican donor Harlan Crow. It’s not about former Justice Ruth Bader Ginsburg winning (and donating) a $1 million prize or about Justice Sonia Sotomayor signing book deals. Yes, all of those situations (though not the same) raise ethical questions. But rather than serving as mutual excuses, where one questionable instance is used to justify another, these examples should be thought of collectively as overwhelming evidence, cutting across judicial ideologies, that stronger ethical guardrails are needed.
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.
Recent reporting indicates that Chief Justice John Roberts has been searching for unanimity on some sort of ethics code. We hope he finds it, but if not, we hope a court majority will enact a strong and binding code despite any individual holdouts (With his public comments, Alito has certainly indicated that he might be one).
All Americans must abide by the decisions of the Supreme Court; it is not asking too much for justices to abide by a clear and consistent code of ethics.