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What Should Be Next: Simple Fixes to the Lackluster Ethics Code

Yes, there’s a SCOTUS ethics code. Yes, it could be better. No, we’re not likely to get any substantive improvements to the text any time soon. But that doesn’t mean the justices can’t do a few things at the margins that would improve the state of affairs.

Here are five ideas:

1. Create a new e-mail address:
There should be a simple way to transmit to the Court alleged violations of the new code. Emails would be forwarded to the ethics counsel.

2. Hire an ethics counsel
Personnel is policy, and the current Court staff is not up to the task of helping the justices navigate ethics challenges.

Looking back, apparently no one in the building sounded the alarm the first time Justice Thomas was caught accepting lavish trips and gifts, in 2011. Thomas’ behavior did not change, and the disclosure errors and omissions continued. More recently, this 2022 missive from Court staff in response to one aspect of the Rev. Schenck scandal was especially lamentable.

Even if we are to believe that the justices will comply with new Judicial Conference regulations governing the reporting of free resort stays and private plane travel, someone at SCOTUS (an ethics counsel), not the notoriously overworked Financial Disclosure Committee, should be helping them navigate those and other such rules — and in a consistent, disinterested way.

Republicans have generally reacted to the new code positively, so there shouldn’t be any opposition to funding staff to help the justices comply with it. And Democrats, though generally more skeptical, themselves proposed funding for such a position in an appropriations amendment earlier this month.

This should be an easy one that the Chief Justice could announce in his year-end report.

3. Establish an ethics committee to do some of the ongoing work suggested in the report
Yes, committees are often where good ideas go to die. But given the Court’s “examination of best practices drawing in part on the experience of other federal and state courts” that’s apparently underway (p. 14), it’d be helpful to know which federal and state courts, and which officials at these courts, are being called upon to offer ethics advice. (We have a long list of courts where the nine shouldn’t be looking.)

To use a related example, much as the work product of the Federal Judiciary Workplace Conduct Working Group was seen as underwhelming by anti-harassment advocates, at least the public knew who was on that committee and could expect periodic reports, so there was some built-in accountability.

A Supreme Court Ethics Committee, led by the Chief Justice and an ethics counsel and charged with examining best practices in judicial ethics, would be salutary.

4. Start using conflict-check software
Every term the justices fail to recuse from some petitions despite credible conflicts of interest. (Fix the Court has compiled a list here.) Some of these might be considered attenuated, but others are clear: e.g., Justices Breyer and Alito not recusing a few years back in Feng v. Komenda and Rockwell Collins, though both owned shares in Rockwell’s parent company, United Technologies.

A source once told FTC a few justices were using conflict-check software but that its adoption was not universal. The reference to such software on the last page of the commentary to the code implies that that remains true. But all nine should use the same belt-and-suspenders approach (physical “conflicts sheets” plus software) that has been mandated in the lower courts since 2007.

5. Confirm that the justices are completing annual ethics training and disclose the content
The last sentence in the commentary to the code says, “The Office of Legal Counsel […] will continue to provide annual training on [ethics and disclosure] issues to Justices, chambers staff, and other Court personnel.”

This is the first we’re hearing that the justices completed any ethics training, let alone annual ethics training. So we think this should be cleared up.

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