Supreme Court's new ethics declaration stops short of concrete action

Chief Justice John Roberts’ snub of Dick Durbin on Tuesday was accompanied by a less-noted rarity: a declaration signed by all nine justices on their ethics practices.

The “Statement on Ethics Principles and Practices” seemed designed to quell rising calls for ethics reform at the high court. But it didn’t break much new ground, and it stopped well short of adopting an enforceable code of conduct that critics have been clamoring for.

Instead, the unusual statement — the first of its kind in three decades — showed a court that is often ideologically fractured banding together to present a united front in the wake of recent controversies surrounding some of its members. The justices’ message is the same as it largely has been in the past: Trust us.

“There’s nothing new in this statement. The statement is a lot of handwaving,” said Kathleen Clark, a law professor and expert on legal ethics at Washington University in St. Louis. “The problem is not with foundational ethics principles. The problem is there’s no accountability for violating the law. And there’s nothing in this statement that suggests the court even understands what the problem is.”

The statement, consisting of three pages of text and two pages of citations, was attached to a short letter that Roberts sent to Durbin declining to appear at a Senate Judiciary hearing on Supreme Court ethics.

“This statement aims to provide new clarity to the bar and to the public on how the Justices address certain recurring issues, and also seeks to dispel some common misconceptions,” the justices’ pronouncement says. It largely echoes previous commitments the justices have made about financial disclosures and recusal practices, and it says the justices “consult” various non-binding sources when faced with ethical issues.

The push for ethics reform at the Supreme Court is intensifying after recent revelations about Justice Clarence Thomas’ relationship with a Republican megadonor and Justice Neil Gorsuch’s sale of a property to the head of a law firm with business before the court.

Sens. Angus King (I-Maine) and Lisa Murkowski (R-Alaska) introduced a bill Wednesday that would require the high court to adopt a code of conduct within a year. It’s a bipartisan boost for a court-reform movement that has largely been led by Democrats — though like prior efforts to enact a Supreme Court code of conduct, the bill has little chance of passage.

Sen. Sheldon Whitehouse (D-R.I.), a longtime critic of the court’s ethics practices, derided the court’s latest attempt to assure Congress and the public that it can largely police itself.

“This new statement of principles has virtually no utility,” he said. “There is still no inbox to file a complaint, no process for fact finding, no way of making ethics determinations, and thus no way of holding justices accountable.”

Durbin, who chairs the Senate Judiciary Committee, was a bit less confrontational, but said the high court’s response further demonstrates the need for court-reform legislation.

“I am surprised that the Chief Justice’s recounting of existing legal standards of ethics suggests current law is adequate and ignores the obvious,” Durbin said. “It is time for Congress to accept its responsibility to establish an enforceable code of ethics for the Supreme Court, the only agency of our government without it.”

The Supreme Court seldom comments publicly about its ethics practices.

In 2019, Justice Elena Kagan told a House subcommittee that Roberts was actively considering whether the court should adopt a formal ethics code.

“The chief justice is studying the question of whether to have a code of judicial conduct that’s applicable only to the United States Supreme Court,” Kagan told lawmakers at the time. “That has pros and cons, I’m sure, but it’s something that is being thought very seriously about.”

The court has provided no further update about the adoption of any ethics code since then, and Tuesday’s statement from the court seems to confirm that the effort petered out.

In fact, the new statement closely tracks a 2011 exposition from Roberts on the subject. Writing in his year-end report on the judiciary, he defended the lack of a binding code of conduct for the Supreme Court. Like Roberts’ 2011 comments, Tuesday’s statement invokes the court’s “unique” qualities and institutional interests.

Before this week, the last time the justices issued a joint statement about their own ethics practices appears to have been in 1993, when seven justices published a “Statement of Recusal Policy” about cases that might involve attorneys in their families or law firms employing those relatives. The absence of two justices from that declaration appeared to stem not from disagreement but from the fact those jurists didn’t have relatives working as lawyers.

Two years before that, the court issued a resolution in which the justices agreed to abide by regulations on gifts and outside income adopted by the Judicial Conference of the United States, a body created by Congress to write rules for federal courts.

More recently, the court put out a rare joint statement deploring the disclosure to POLITICO of a draft majority opinion overturning Roe v. Wade. In the statement — issued in January and apparently on behalf of all nine justices — the court called the breach of confidentiality “a grave assault on the judicial process” and an “extraordinary betrayal of trust,” but also said the court had been unable to determine the source of the draft, which was largely identical to the majority opinion the court issued last June ending the federal constitutional right to abortion after nearly a half-century.

The decision overturning Roe and the recent string of ethics controversies — including reports of efforts to lobby justices through meals, vacations and social events — likely have contributed to declining public trust in the court. Only 37% of Americans have a “great deal” or “quite a lot” of confidence in the Supreme Court, according a new poll released Monday by NPR, PBS NewsHour and the Marist Institute for Public Opinion. That’s the lowest number since the poll began asking the question in 2018.

Clark, the legal ethics expert, said the court’s new statement on Tuesday has a face-saving quality to it, but will not accomplish what the justices appear to have intended.

“These folks are politicians. They’re absolutely politicians, so they apparently thought signing their names, all nine of them, to this two-plus-page statement was better than not doing it,” she said. “There’s no reason to think these folks are going to start being accountable until Congress takes some action. They're going to have to be dragged kicking and screaming into the post-Watergate accountability world.”

Tuesday’s statement does raise one new issue not contained in previous court statements on ethics: fears for the justices’ safety.

“Judges at all levels face increased threats to personal safety. These threats are magnified with respect to Members of the Supreme Court, given the higher profile of the matters they address,” the justices wrote. “Recent episodes confirm that such dangers are not merely hypothetical. … Matters considered here concerning issues such as travel, accommodations, and disclosure may at times have to take into account security guidance.”