Time for a Supreme Court ethics code with teeth
President Biden's proposed reforms are both sensible and timely.
Most federal and state court judges have strict, mandatory codes of conduct. The purpose of those rules is to prevent both actual impropriety and the appearance of impropriety. And that makes sense: Why would we trust a court when the judges have financial or personal interests in the outcomes of their cases? When they do, judicial codes of ethics require that the cases go to another judge who does not.
And then there is the United States Supreme Court, the court that makes the final decisions about what federal laws and the Constitution mean. Its rulings can only be reversed by other Supreme Court decisions, by amending the law, or by amending the Constitution.
What code of ethics gives us confidence in the court that makes the most important decisions for our country?
Until recently, none. And that lack of a code has become a major problem for the court. Justices have been caught doing unseemly things, from having taxpayer-funded employees hawk their books, to selling dead-weight property to lawyers with business before the court, to taking out massive debt, allegedly for purchases of baseball tickets.
The most glaring examples of questionable behavior came from Justice Clarence Thomas, both for his refusal to recuse himself from cases involving his wife’s interests and for his relationship with billionaire Harlan Crow. Crow paid Thomas for, then fixed up, a house where Thomas’ mother still lives. He paid for the grandnephew that Thomas raised “as a son” to go to an expensive private school. He gave lavish gifts to Thomas and forgave a loan for an RV that cost more than many houses. Thomas failed to report these gifts on disclosure forms, claiming that he, one of nine people entrusted with final interpretation of all federal laws, misunderstood the instructions.
Justice Samuel Alito’s behavior has also raised eyebrows and blood pressure. He has taken luxury trips with billionaires who have had business before the court. He knowingly used the words of a witch trial judge and rape apologist — one considered misogynist even in the 1700s — to justify overturning the right to abortion. His homes have flown controversial political flags. But none of these actions stopped him from presiding over cases where his impartiality was in question.
In response to public outcry, the court created its first ethics code, a weak and toothless code that addresses none of the issues that have caused Americans to stop trusting the court. Today, the court is viewed favorably by a historically low 44% of the population, down from 80% in the late 1990s.
So now what?
Conservative writer Yuval Levin proposes one solution in A Time to Build. Levin argues that the decline of America’s institutions — from political parties to families to religious institutions — is due to their failure to, as the old saying goes, “make the man.” It was once the case, he states, that most elected or appointed officials would rise to the demands of their offices, serving all constituents equally and carrying out their official duties with dignity. Today those offices are too often launchpads for the careers, notoriety and power of their holders, springboards rather than molds. And the public, sensing this degradation, has appropriately lost faith in those institutions. He urges that we focus on rebuilding institutions that can form the public servants we so dearly need.
The court had a chance to do that rebuilding on its own. It failed and instead has disregarded the spirit of the Constitution to encourage monarchy and corruption.
Now the people must force it to change.
President Joe Biden has started the process, proposing a binding code of ethics and the 18-year staggered term system that we have advocated. Biden, who has both the historical and political wisdom to realize how dangerous the current court is to its own authority, has offered a practical solution to a problem the court made for itself. The only question now is: Will the nation take it?
Kelcey Patrick-Ferree and Shannon Patrick live in Iowa.
Originally published in the Iowa City Press-Citizen under the headline “Joe Biden is correct: The Supreme Court needs an ethics code with teeth” on August 10, 2024.