A week ago, the US Supreme Court issued, for the first time since its creation in 1789, a Code of Conduct to which the country’s most important judges must adhere. The document consists of nine pages with five more of comments and was signed by all its members.
The creation of this document is closely related to the publication of several reports disseminated by the site ProPublica, as well as in other media, which exposed cases in which some Justices received gifts from millionaire donors that were not reported. For example, for decades Clarence Thomas accepted very luxurious trips from Texas millionaire Harlan Crow, who also bought the judge’s mother’s house and paid the tuition of one of her godchildren. Thomas also participated in events at the Courthouse for a conservative Koch group organization where admission was charged. Samuel Alito, for his part, accepted a private flight to Alaska from billionaire Paul Singer, without later apologizing for knowing about a case in which that same businessman was an actor.
The Code of Conduct is independent of the legislation applicable to all federal judges, including members of the Supreme Court, which requires them to report annually their income, assets and gifts received. The new document, similar to that applicable to lower-ranking federal judges, requires that Justices act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. It prohibits them from asking for gifts, litigating or hearing cases in which their impartiality could reasonably be questioned. It also establishes that they should not get involved in political activities, without defining what this should mean.
The existence of rules to which the members of the Court will be subject is a great advance, there is no doubt about that. Since its publication, however, some questions arise. One is related to the application mechanism. There are no provisions that indicate who is responsible for determining whether its rules have been violated, nor what happens if there are violations. It is unnecessary to insist that the mere existence of rigorous and aggressive regulations becomes useless without provisions that ensure compliance. The recently revealed cases show that a system based on the honor of the Justices is insufficient. This leads us to consider what should happen regarding such conduct once there is a Code of Conduct. Both Thomas and Alito previously argued that they did not violate the current law, since they were not obliged to report the luxurious trips as they considered them hospitality of their friends. Will these same behaviors be sanctioned based on the new Code? If that were the case, who is responsible for imposing the sanction? While the unknowns are cleared up, the possibility remains open that the federal Congress will legislate on the ethical conduct of the members of the Court.