Is a “Toothless” SCOTUS Ethics Code Better Than No Code at All?
BU LAW’s Jack Beermann says the court’s new code needs to be much clearer on what gifts should be disclosed
Chances are you’ve never heard of Samuel Chase. But more than 200 years after he died in 1811, his name is suddenly relevant. To this day, Chase is the only United States Supreme Court justice ever impeached, after his angry and bitter partisan rhetoric caused President Thomas Jefferson to try to remove him from the bench. Chase argued that he was being pushed out for his political beliefs, and after the House of Representatives voted to impeach him, his attorneys managed to convince enough senators to side with Chase that he was acquitted, on March 1, 1805.
Why does Chase’s story matter today? For the first time in history, the Supreme Court this week published a formal code of conduct in the aftermath of criticisms against several justices for failing to disclose potential conflicts of interest or financial matters that some say raise questions about their ability to be impartial on cases before the court. However, the code contains almost no new rules, and instead simply outlines the guidelines and principles justices have always been expected to follow.
The code’s introduction acknowledges this: “For the most part these rules and principles are not new,” adding, “the absence of a Code…has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.” The court said it hopes the code will dispel that misunderstanding.
Reaction to the code was swift, with many SCOTUS followers calling it “a joke” and “toothless.” BU Today first spoke with Jack Beermann, a BU School of Law professor of law and Philip S. Beck Professor, a year ago about whether it was time for the court to have an ethics code. So we went back to him this week to talk about the latest news.
This interview has been edited and condensed for clarity.
with Jack Beermann
BU Today: Does this new SCOTUS code of conduct policy have any real teeth to it—or is it just an attempt to placate critics who say the justices have acted without any oversight for too long?
Beermann: The code has no enforcement mechanism, not even a mechanism for filing complaints. The assumption must be that litigants will continue to file motions to disqualify a justice from hearing a case and the justice himself or herself will decide whether to step aside. It’s not clear what happens when misconduct is alleged after the fact—for example, after a case has already been decided and then it is discovered that a justice arguably ought to have stepped aside. It looks like window-dressing to me, perhaps an attempt to placate critics. It might also have a better motivation; the chief justice may have pushed for this to remind some of his colleagues that they are subject to ethical constraints and they ought to be thinking about this before they accept gifts from people who are interested in cases that come before the court.
BU Today: Could the issue have been handled better by Chief Justice Roberts?
Beermann: It might have been better if the court would have decided that a justice’s refusal to step aside from a case when asked would be reviewed by the entire court. That would be a major change to the court’s dynamics. I’m sure that the court is extremely reluctant to take a step like that.
BU Today: So then does the code of conduct go far enough in holding a justice accountable? Are there other things you wish were included, but were not?
Beermann: I wish they had made a clearer statement on gifts. The statement incorporated by reference the Judicial Conference Regulations on Gifts, which is a step in the right direction, but it would have been better if the court itself had spelled out the rules concerning gifts. Further, while the Regulations prohibits the justices from accepting gifts from persons whose interests may be affected by the court’s actions, that Regulation allows the justices to accept gifts from friends and leaves it to the justices themselves to determine whether they ought not accept a gift from a friend whose interests are likely to be affected by the court’s decisions.
BU Today: What would you have done regarding gifts?
Beermann: My suggestion is that they set a ban on gifts and loans from non–family members over a certain value—perhaps $500—and that regardless, they require justices to disclose to the public all gifts and loans not from family members. Public confidence in the Supreme Court is too important to allow justices to accept undisclosed gifts from people who are interested in the court’s business or who have cases in the court. This isn’t a radical idea, it’s Ethics 101.
BU Today: Is the code a direct rebuke of Clarence Thomas, the justice who has faced the most criticism?
Beermann: It’s difficult to say that this is directed at Justice Thomas. He did join his colleagues in adopting the statement. Other justices have been accused of inappropriate conduct, so I would say that the statement is directed at the court as a whole, and more importantly, at the public, to attempt to restore public confidence in the court. Most people will hear about the headline, but not drill down into the statement and see that it is toothless and vague on important matters.
I would add that in my view, the most serious threat to public confidence in the court is only tangentially related to the matters covered in the announced ethics rules. The partisan behavior of the justices has become crystal clear in the eye of the public in recent years, and because the court does not represent the mainstream of American political and social viewpoints, this behavior has become a major issue for many people. The court has always been a partisan institution, but it seems to be more so today, and again, when the court’s decisions are contrary to the views and expectations of the public, this behavior undercuts confidence in the court’s integrity.
BU Today: Another issue that was overlooked is when justices should recuse themselves from a case because of a conflict.
Beermann: It was always implicit to me, if a case presents conflict of interest, a justice would talk about it and recuse themselves. It’s evidence of how gently the justices wanted to tread on this. Traditionally, it’s up to each individual justice to recuse themselves. But they don’t mention recusal as a remedy, they don’t want to make it a directive, because then people could say they should have recused themselves and did not.
BU Today: So it sounds like you agree with those describing this code as essentially “toothless.”
Beermann: It is toothless. I know some people say if they adopt a totally toothless one, it’s better if you don’t do it at all. I’m not necessarily sure I agree with that. The chief justice does seem concerned the public is losing confidence in the court. But it is a pretty toothless code.
The issue with gifts is they didn’t spell anything out. Bribery can take many forms. They could have spelled it out better, with a higher standard of disclosure. All gifts and loans from non–family members ought to be disclosed in my opinion. That’s been the problem.
BU Today: So is there a better remedy?
Beermann: I think the only real remedy is impeachment. Federal judges have been impeached. But today the standard is so much lower. Congress’ only real weapon is impeachment.