OP-ED: Supreme Court Issues Ethics Guidelines With No Teeth

Image of toothless lion with mouth open
The Supreme Court's new Code of Conduct fails to address violations by any of the justices.

After months of intense criticism over the decades of inappropriate behavior no other judges in America would have been permitted to engage in, the Supreme Court on Monday finally announced a code of conduct that purportedly addresses ethics concerns. 

THE SERAAJ REPORT, by Kevin Seraaj, Orlando Advocate

It falls woefully short.

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Not every justice was guilty of the improprieties that rocked the Court–  at least not that we know of.  But it is probably a sure bet that in the very close-knit world of justices and clerks, all of them were aware– and for a very long time–  of the improprieties of Justices Clarence Thomas and Samuel Alito.  Certainly, Thomas’s decision not to recuse himself in rulings related to action taken by his wife– including taking money from persons appearing before the Court– had to have raised an eyebrow or two.  

In September of last year, The Washington Post reported that Justice Thomas’s wife, Virginia, appeared before the Jan.6 Committee to argue that the 2020 presidential election had been stolen– even though a slew of federal courts had reviewed those claims and found them to be without merit. Beyond that, she reportedly sent text messages to the then-White House Chief of Staff urging that he and the White House take steps to overturn the election. 

Virginia denied ever discussing these matters with her husband, and said that he had never discussed his work at the court with her. If you believe that you might just as well believe in the tooth fairy. Even if true, when cases relating to the “election-was-stolen” attack on the Capitol came before the Court, Thomas should have recused himself– that’s something lawyers call “avoiding the appearance of impropriety.” But he didn’t.

The new code of conduct finally embraces “appearances”, but at the time nothing was said or done by the other Justices, despite considerable media coverage. 

Silence is always interpreted as unstated approval.

It could be argued here that something is better than nothing, but the length of time it took for the Court to come to this “code” is hardly comforting. Not long ago, Chief Justice Roberts and the Court “vigorously and consistently resisted oversight, arguing that it would undermine the independence of the Supreme Court and violate the separation of powers in our constitutional system.”

The newly released code itself notes that “For the most part these rules and principles are not new: The Court has long had the equivalent of common law ethics rules. . . . [We now issue] this Code, which largely represents a codification of principles that we have long regarded as governing our conduct.”

“Long regarded,” but chose not to require.

They have instead viewed themselves as being above the rules that lesser jurists were bound to obey.

Make no mistake about it– the Court’s decision to come up with a rule book was not a crackdown on the Thomas and Scalia types among them. It was decidedly a response to the increasing negative public opinion and declining respect for the High Court that pushed its creation. And now that the public has been placated, the new rule book could very well end up being worth only about as much as the paper it is printed on.

After re-stating the “principles” and “common law ethics rules” every Justice was already familiar with, the so-called Code of Conduct fails to even address the idea of a violation by one of their nine. A cursory reading of the code quickly reveals that it has no teeth. That is to say, there are no repercussions spelled out anywhere for violating said “rules.” 

A toothless lion gets no respect.


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