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So SCOTUS Now Has an Ethics Code. It Could Be Better. (Much Better.)

Fix the Court’s Gabe Roth released this statement:

“The prologue to the Supreme Court’s new ethics code gives away the game: the justices say that recent public concern over their conduct is merely a ‘misunderstanding,’ and the Code is being put in place to ‘dispel that misunderstanding.’

“Yet this recitation is untrue. There’s a Code today because the justices have clearly and for years failed to live up to their ethical responsibilities, and once the public finally caught wind of it to a large degree, the nine had little choice but to react to that pressure.

“Unfortunately, that reaction, and this Code, leave much to be desired. That it’s largely a copy-and-paste job from the lower court’s code fails to account for so much. For example, under the new Code, there remains today no way for a lawmaker or member of the public to file a complaint against a justice for misconduct. There’s no way for an outside source to advocate for recusal when a justice participates in a case despite an obvious conflict. These are serious oversights that demand corrections.

“If the nine are going to release an ethics code with no enforcement mechanism and remain the only police of the nine, then how can the public trust they’re going to do anything more than simply cover for one another, ethics be damned?

“What’s more, the Code appears to defend some of the justices’ worst offenses by adding language to the lower courts’ code that effectively excuses, for example, Justice Thomas’ attendance at Koch retreats (the addition of the word ‘knowingly’ to Canon 2) and his free gifts and travel from Harlan Crow and others (it’s the ‘now in effect’ gift rules the nine must follow in Canon 4). These additions aren’t fooling anyone.

“If there’s one positive from the Code it’s a sentence at the end of the commentary clearly written by the Chief Justice noting he’s unilaterally directing those under his purview to examine best practices in ethics and continue work in this area.

“Sadly, it is unclear if the other eight agree that more needs to be done here, or if they simply hope today’s missive will be the end of the story.

“Fix the Court does not see this as the end, and in that spirit, we’ll have additional suggestions on where to go from here in the coming days.”

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