Columnist Bill Newman: Supreme Court fails to acquit itself

Bill Newman



Published: 12-03-2023 8:36 AM

In November, the United States Supreme Court adopted a Code of Conduct. It’s a list of suggested, not required, ethical dos and don’ts for the Justices.

The justices issued this document because they want the klieg lights that the news media has been shining on their lack of transparency and apparent ethical lapses to be turned off. The facts regarding those transgressions, as lawyers would say, are not in dispute.

Justice Clarence Thomas failed to disclose multiple luxury vacations that billionaire and ledmegadonor Harlan Crow paid for. Also not disclosed: Crow paid the tuition for Thomas’ great nephew, who the justice was raising, and he bought Thomas’ mother’s house. And let’s not forget the luxury motor home provided to Thomas through the largesse of health care industry magnate Anthony Welters.

Justice Samuel Alito has faced similar accusations of lavish all-expenses paid vacations by super rich people who have more than passing interest in cases before the court.

Justice Sonia Sotomayor, while not remotely in the same category as Alito and Thomas, did herself no favors by allowing law clerks to promote her books.

The reason politicians take actions like issuing a Code of Conduct — and Chief Justice Roberts is, indeed, a highly skillful politician — is that they want to get ahead of the story. Here the court was more behind an eight ball than ahead of the story, but you get the idea.

Justices’ public statements no doubt also played a part. Elena Kagan and Amy Coney Barrett already had publicly endorsed the idea of an ethics code, and Brett Kavanaugh had indicated that the court would take “concrete steps” to address ethics concerns.

A bill pending in Congress that would impose ethical rules also was in the mix even though Sen. John Kennedy (R. La) had announced that on the Senate floor the proposal would be “as dead as fried chicken.” And Justice Alito had opined that such a law would be unconstitutional, would violate separation of powers.

Politically there’s nothing complicated here. Republicans will fight to the death against anything that that might remotely threaten the right-wing, six justice super majority.

Before November, the Supreme Court had no Code of Conduct, and pretty clearly some of the nine had to be dragged kicking and screaming to sign this one.

For proof, read the code’s grudging introduction. It says, “The absence of a Code (of ethics) has led in recent years to the misunderstanding that the Justices of the Court, unlike all other jurists in the country, regard themselves as unrestricted by any ethical rules.”

Oh, now we get it. Thomas and Alito’s behavior led to a misunderstanding on our, the public’s, part, not theirs, of what behavior by justices might be unacceptable. What was it that we the public misunderstood? The court did not explain but rather forged ahead, asserting, “To dispel this misunderstanding, we are issuing this Code.”

That code fails to even hint at the possibility that any justice in any way, at any time might have done anything questionable or wrong. It doesn’t even indicate that it intends to change any of their recent objectionable behavior. It also has no specific restriction on gifts, travel, or real estate deals.

And here’s the real showstopper. The code has no enforcement mechanism. Really, none. None whatsoever.

As for the critical issue of when a judge should recuse themself — that is, not sit on a case, the code leaves that decision entirely in the hands of the judge whose impartiality is at issue. So, for example, Justice Thomas alone, in his unreviewable discretion, still gets to rule in favor of Justice Thomas sitting on cases involving the January 6 insurrection notwithstanding that his wife, Virginia Thomas, an election denier, participated in efforts to overturn the 2020 presidential election results.

And to add insult to injury: when deciding to not disqualify themselves, a justice need not provide one word of explanation.

By issuing the code, Chief Justice Roberts may well have turned off, or at least lowered the intensity of, those klieg lights of public scrutiny. Indeed, some legal commentators have congratulated the court, describing the code as “a small but significant step in the right direction.”

And maybe it is. And maybe Congress will still act. And maybe the court will take further action. But don’t bet on it.

The new code, as a practical and political matter and in the absence of further revelations, unfortunately may well push this issue aside, at least for a while. That would please the court and the justices. After all, it serves their interests to cover up — excuse me, to paper over — Alito and Thomas’ behavior.

Some assert that the Supreme Court having a toothless Code of Conduct may be better than the court having no code at all. Maybe.

But maybe not. Not if people now believe, naively, that the court has come to terms with its ethical conflicts Not if the voices of lawyers, voters, elected officials and jurists who have been demanding, so far unsuccessfully, that the court honestly address its unresolved and deeply disturbing ethical issues go silent.

Those who think this code is worthy of applause are listening to the sound of one hand clapping. 

Bill Newman is a Northampton-based lawyer and co-host of Talk the Talk on WHMP.