Inaction Regarding Ethics Lights Fire Under Supreme Court

Chief Justice John Roberts has come under fire for failing to respond to calls for the Supreme Court to adopt a binding code of conduct, after the court released a new statement signed by all nine justices stressing their commitment to ethics principles.

The statement, which Roberts attached to a letter to Senate Judiciary Committee Chairman Dick Durbin, DIll., was made public Tuesday, in which he declined an invitation to testify at a committee hearing about the court‘s ethics rules.

The statement has been criticized for failing to address recent calls for the Supreme Court to adopt a formal code of conduct. Legal ethics experts have said the statement falls short, and Democratic lawmakers have been quick to express their disapproval.

District and appeals court judges are bound by a judicial ethics code that requires judges toavoid impropriety and the appearance of impropriety in all activities. Judges who breach the code can be investigated and reprimanded through a separate complaint process.

The Supreme Court, however, has no procedure for complaints to be investigated short of the substantial step of impeachment. The nine justices say they follow the spirit of the code, but they have never adopted one of their own.

In response, Sens. Angus King, IMaine, and Lisa Murkowski, RAlaska, said Wednesday they will introduce legislation to 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. A similar bill had already been introduced by Sen. Chris Murphy, DConn.

The public backlash to the Supreme Court‘s statement has been fierce. Stephen Gillers, a professor at the New York University School of Law, said amending the current code of conduct for the Supreme Court would besimple and would pose no threat to the separation of powers.

There is no excuse for failing to do so,” Gillers said.While it is true that there is no way sensibly to enforce an ethics code against the justices, that is not a reason not to adopt one. The enforcement will rely on the justices honor and respect for the court itself.”

Sen. Sheldon Whitehouse of Rhode Island also denounced the new statement of principles, saying it hasvirtually no utility.”

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,” Whitehouse said in a statement Tuesday.

The Supreme Court has faced numerous ethical concerns in recent years, including Justice Clarence Thomas acceptance of gifts and lavish trips from Harlan Crow, a Republican donor and billionaire. Thomas did not disclose the gifts he received from Crow, prompting calls from Democrats on the Judiciary Committee for Roberts to investigate Thomas conduct. Thomas has since said the gifts werepersonal hospitality.”

Liberal Justice Ruth Bader Ginsburg also came under fire for her heavy criticism of Republican presidential candidate Donald Trump during the 2016 election.

The Supreme Court‘s refusal to engage on the issue of a code of conduct appears to have further enflamed Democrats. Roberts had been invited to testify at the Senate Judiciary Committee‘s hearing next Tuesday, but he suggested his participation could infringe on judicial independence.

The public backlash has been particularly strong among conservative justices, which coincides with the court‘s rightward shift. Charles Geyh, a professor at Indiana University Maurer School of Law, said conservative justices may feel they are beingunfairly attacked,” leading them to reject a code of conduct.

Its not a conservatives problem, but I think its something they perceive as such,” Geyh said.

The Supreme Court‘s lack of a binding code of conduct has become a major issue, and it is clear that the justices statement of ethics is insufficient to address ethics concerns that have plagued the court in recent years. While the justices may feel they are being unfairly attacked, the American public is demanding greater accountability, and this statement is not enough to restore their trust in the institution.


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