TO new statement signed by the nine Supreme Court justices emphasizing their commitment to ethical principles has been immediately criticized for failing to respond to recent calls for the court to adopt a binding code of conduct.
The statement was attached to a letter from Chief Justice John Roberts to Senate Judiciary Chairman Dick Durbin, D-Ill., made public Tuesday, in which he declined an invitation to testify at a committee hearing on the rules. ethics of the Supreme Court.
The statement, which notes that judges «reaffirm and reaffirm» their commitment to ethical principles, falls short on several fronts, legal ethicists said. Democratic lawmakers were also quick to criticize him.
Several experts criticized the court for doubling down on its decision not to adopt a formal code of conduct when public trust in the institution It has slumped after high-profile ethics concerns as well as backlash from the public to some of its rulings on hot-button issues like abortion and guns. The court has a 6-3 conservative majority.
“It reflects a surprising level of intransigence given the problems facing the court,” said Charles Geyh, a professor at Indiana University Maurer School of Law, noting that public support for the court had plummeted.
District court and appellate court judges are bound by a judicial code of ethics which requires judges to «avoid impropriety and the appearance of impropriety in all activities.» Judges who violate the code may be investigated and reprimanded through a separate complaint process.
The Supreme Court, however, does not have any procedure to investigate complaints other than the substantial step of impeachment. The nine justices say they follow the spirit of the code, but have never adopted one of their own.
On Wednesday, Sen. Angus King, I-Maine, and Sen. Lisa Murkowski, R-Alaska, said they will introduce legislation require the court to create its own code of conduct, as well as appoint an official to review public complaints and publish annual reports disclosing them. TO similar bill it had already been introduced by Senator Chris Murphy, D-Conn.
Arthur Hellman, a professor at the University of Pittsburgh School of Law, said the judges’ ethics statement is «a step forward» but insufficient to address the ethical concerns that have swirled in court in recent years. It also serves as a signal that the court has no plans to adopt a binding ethics code without substantial pressure from Congress, he said.
Stephen Gillers, a professor at New York University Law School, said modifying the Supreme Court’s current code of conduct would be «simple» and would not pose a threat to the separation of powers.
«There’s no excuse not to,» Gillers said. “While it is true that there is no way to enforce a code of ethics against judges, that is not a reason not to adopt one. The application will depend on the honor of the judges and respect for the court itself.
Roberts had been invited to testify at the Senate Judiciary Committee’s May 2 hearing on the Supreme Court’s ethics rules and possible reforms to those rules. But he suggested that his participation in the hearing could infringe on judicial independence.
In recent weeks, the court has come under increased scrutiny after a ProPublica report described how Judge Clarence Thomas had accepted gifts and lavish trips from Harlan Crow, a billionaire Republican donor. Thomas did not disclose the gifts he received from Crow, prompting calls from Democrats in the Judiciary Committee for Roberts to investigate Thomas’ conduct. Since then, the judge has called the gifts «personal hospitality.»
But concerns about ethical lapses by judges are nothing new. Liberal Justice Ruth Bader Ginsburg came under fire for her harsh criticism of then-Republican presidential candidate Donald Trump during the 2016 election.
Still, conservative justices have faced the biggest public backlash in recent years, coinciding with the court’s turn to the right. Geyh said conservative judges may feel they are being «unfairly targeted», leading them to reject a code of conduct.
“It’s not a conservative problem, but I think it’s something they perceive as such,” Geyh said.
Roberts’ refusal to get involved in the issue seemed to further infuriate Democrats, with Sen. Sheldon Whitehouse, DR.I., saying the court was engaging in «self-policing» that «has not served the American people well.»
“This new mission statement is virtually useless,” Whitehouse said in a statement Tuesday. «There is still no inbox to file a complaint, no process to determine the facts, no way to make ethical determinations, and therefore no way to hold judges accountable.»
Whitehouse has introduced legislation to create a new procedure to investigate and enforce the Supreme Court’s disclosure rules, becoming one of the last Democratic senators to do so.
Durbin said the Supreme Court’s ethics reforms «It must happen whether the Court participates in the process or not.»
“I am surprised that the Chief Justice’s account of existing legal ethics standards suggests that current law is adequate and ignores the obvious,” Durbin said in a statement responding to Roberts’ letter.
The judges’ declaration stipulated that they file the same annual financial disclosure reports as other federal judges. Reports of errors in these reports are referred to the Financial Disclosure Committee, which can send a letter of inquiry to a judge. They follow the same general principles and standards for recusal as other judges, but the application of the principles may differ due to the unique position of the court, the judges wrote.
Gabe Roth, chief executive of the nonpartisan watchdog Fix the Court, said of the judges’ statement: «My main takeaway is that beyond the utter disappointment I have in reading and rereading it, it is self-contradictory in a way really disappointing.»
«Roberts says he’s looking to ‘address certain recurring issues,’ but it’s the very fact that these issues are recurring that makes them so problematic,» Roth added.