A few violations — and a few improvements — since the 2023 release, yet no significant additions

Ahead of tomorrow’s two-year anniversary of the release of the justices’ Code of Conduct, Fix the Court is reflecting on changes to the justices’ ethical behavior in light of the Code and what remains inadequate in terms of their ethical policies and practices.

The main deficiency is that there remains no enforcement mechanism. It would not be difficult for Chief Justice Roberts to appoint “some sort of committee of highly respected judges with a great deal of experience [and] with a reputation for fairness,” as Justice Kagan contemplated last year, to do that work. This committee would receive complaints, separate the meritorious from the frivolous and review the meritorious ones, after which they could recommend remedial steps, like recusal, disclosure amendments or ethics training. (More on that here.)

Another deficiency is that there’s been no update on whether the Court has conducted an “examination of best practices” in judicial ethics, as mentioned in the commentary to the Code, which implied that the document wasn’t going to be the justices’ final word on ethics.

That said, it does appear that some have taken steps to improve their ethical stewardship, which we describe below, while others (there’s some overlap) have opted to continue engaging in ethically dubious behavior.

FTC’s Gabe Roth said: “Though there have been a few instances of ethical enlightenment from the justices these last two years, there’s much more they should be doing to improve the Court’s ethical standing, from speaking to more ideological diverse audiences to having all nine explain their recusals. The most troubling fact about the Code today is that there remains no way to enforce it, and justices, like their friends in the executive branch, are still able to act however unethically they wish with complete and total im[p]unity.”

The Good

Here is a list of actions we believe the justices would not have taken but for the existence of the Code and its predecessor Statement of Principles

RECUSALS

1. Spring 2023 (before the Code but after the Statement and continuing through the present): Justices Kagan (beginning in May 2023; p. 8) and Jackson (beginning in June 2023; p. 3) are briefly explaining their recusals. The other seven justices are not. (See OT25 recusal list here.)

2. Dec. 2024: Justice Gorsuch recused in Seven County Infrastructure Coalition v. Eagle County (23-975). We believe this was due to his continued friendship with Phil Anschutz, whose Colo. ranch we have reason to believe (i.e., a USMS FOIA) the justice still visits on occasion.

3. Feb. 2025: Justice Barrett recused in the consolidated cases of Oklahoma Statewide Charter School Board v. Drummond (24-394) and St. Isidore v. Drummond (24-396). We believe this was due to her close relationship with Notre Dame Law Prof. Nicole Garnett, who assisted St. Isidore with its state court filings.

4. May 2025: Justices Sotomayor, Gorsuch, Barrett and Jackson recused in a petition naming their book publisher, Penguin Random House, as a party, marking the first time a justice recused for this reason. (Justice Breyer’s earlier PRH recusals were due to his wife’s ownership of Pearson stock; Pearson used to own PRH.)

GIFTS

5. The justices reported receiving no gifts on their 2024 disclosures, save a flight to and from and a hotel stay in Kansas City that Justice Sotomayor reported (she read to students and watched them adapt one of her books into a play) and which could have been construed as a reimbursement, since this type of engagement with young students is beneficial to the civic health of our country. (It’s also possible the justices have accepted gifts worth more than $480 that they didn’t report, or that they accepted vast amounts of dubious personal hospitality, but for now, we’ll take this as a win.)

The Bad

Here is a list of actions the justices have taken post-code that are either blatantly unethical or come close to it:

RECUSAL VIOLATIONS

1. Neither Justice Thomas nor Justice Alito recused in any of the Jan. 6-related or 2020 election-related cases — Trump v. Anderson (23-719), Fischer v. U.S. (23-5572) and Trump v. U.S. (23-939); the Eastman one (22-1138) doesn’t count since Thomas was name-checked, which triggers recusal — despite the fact that their wives’ actions, some of which the justices undoubtedly knew about, imputed bias and despite the code’s admonition in Canon 3(B)(2) to recuse when “an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the justice could fairly discharge his or her duties” (cf., D. Ore. Judge Simon recusing last month due to his wife’s comments about the National Guard’s potential deployment).

2. Justice Jackson dined with the head of the U.S. Patent and Trademark Office, Kathi Vidal, while two petitions naming Vidal as a party (in her official capacity, and not as egregious as the point above, but still a bad look) were open at the Court.

DISCLOSURE VIOLATIONS

3. Justice Thomas has still not disclosed all of the gifts he’s received from Harlan Crow and other wealthy benefactors. Senate Democrats noted this in their Dec. 2024 report, and attention toward this has waned due to the avalanche of legal news since Jan. 2025.

4. Justice Sotomayor traveled to Spain in 2024, but unlike other foreign trips she’s reported over the years, this trip was omitted from her disclosure. We asked SCOTUS about this but never received a response.

5. Canon 4H states, “All justices have agreed to comply with the statute governing financial disclosure,” yet Justice Alito filed a PTR 281 days post-transaction, which was 236 days after the statutory deadline.

PUBLIC APPEARANCES

6. During their respective 2024 and 2025 book tours, Justices Gorsuch and Barrett felt no compunction about appearing on Fox News or speaking to conservative pundits like Hugh Hewitt (both), Ben Shapiro (Gorsuch), Megyn Kelly (Gorsuch) or Bari Weiss (Barrett), despite the code’s admonishment to “act all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” (Canon 2A). Similarly, Justice Jackson’s 2024-25 book tour has almost always included an obviously liberal moderator (Stephen Colbert, Harvey Gantt, Melinda Gates, Valerie Jarrett, etc.).

INSTITUTIONAL STEWARDSHIP

7. Justices Gorsuch and Kavanaugh berated a lower court judge, who’s been on the bench for four decades, for purportedly “defy[ing]” a SCOTUS decision, despite the code’s admonishment (Canon 3A) that the justices “should be patient, dignified, respectful, and courteous to all individuals with whom the Justice deals in an official capacity.”

Additional information:

At the Code’s 500-day mark in March, FTC’s Gabe Roth wrote to the Supreme Court’s press office asking whether “any new policies [have] been instituted or guidance documents [have] been produced” in light of the Code’s coda (full list below), which noted that “the Chief Justice has directed Court officers to undertake an examination of best practices [in ethics rules].” Roth did not receive a response but plans to send the note again tomorrow with roughly the same questions:

1. What has been the result of the “examination of best practices” mentioned in the first sentence above? Have any new policies been instituted or guidance documents been produced?

2. Is the Court now using software to run automated recusal checks on new case filings?

3. Has the Court added personnel or other resources to the Clerk’s Office or Office of Legal Counsel to review recusal and other ethics issues?

4. Does the Court plan to issue amendments to its rules on the disclosure obligations of parties and counsel that appear before the Court?

5. Has the Office of Legal Counsel produced any documents or guidance in the last 500 days on the justices’ financial disclosure obligations that go beyond the AO’s annual FDR filing instructions?

6. How many times in the past 500 days has a justice sought advice from the Committee on Financial Disclosure on their filings (not including Justices Kennedy and Breyer, who presumably did since both amended their 2023 FDRs)?