Why the Supreme Court’s wasted time on ethics may cost it

Analysis by Joan Biskupic, CNN Senior Supreme Court Analyst

(CNN) — Supreme Court justices, who have infinite power over American lives, have continually resisted calls for greater accountability in a formal code of conduct.

Some justices recently signaled that they might be ready to adopt a binding ethics code. But their record of inaction reflects the difficulty of compromise among the nine and suggests any real change may not come at their own hand.

The delay has had consequences.

Senate Judiciary Committee Democrats plan to authorize subpoenas for three wealthy conservatives, including real estate magnate Harlan Crow, who has provided luxury travel and other gifts to Justice Clarence Thomas.

“How can a Supreme Court justice accept such lavish gifts, let alone fail to disclose them to the American people?” Committee Chairman Dick Durbin said on the Senate floor Tuesday. “The answer is very simple. The Supreme Court of the United States, the highest court in the land, does not have an enforceable code of conduct.”

Durbin said the committee is seeking details on gifts and the potential undue influence of people with a stake in the court’s business.

Without any written code of conduct, it is difficult to know what obligations the justices even accept or what they might need to publicly disclose. They rarely explain why they recuse themselves from particular disputes, or, alternatively, decide to sit on ones that appear to pose a potential conflict of interest.

“So far, the Chief Justice, John Roberts, and the court have failed to do anything,” Durbin said in his speech Tuesday.

Roberts is plainly navigating pressure from the outside for reform and internal interest in leaving protocols for off-bench conduct largely as are. Any court effort to produce a written code of conduct, as currently covers lower federal court judges, will now arise against the backdrop of even more partisan tumult.

Roberts declared in May that the justices would “adhere to the highest standards of conduct” and “look at things we can do to give practical effect to that commitment.” But he has offered nothing since.

Justice Elena Kagan, one of the justices who has publicly endorsed an ethics code, said in August, “it won’t be a surprise to know that the nine of us have a variety of views about this.” 

Justice Samuel Alito has brushed off public calls for formal rules, saying earlier this year in an interview with The Wall Street Journal that he already “voluntarily follows disclosure statutes that apply to lower court judges.”

Justice Amy Coney Barrett, who in October said a formal ethics code would be a “good idea,” added that the justices already hold themselves “to the highest ethical standards possible.” She said they were considering “how best to express what it is that we are already doing.”

Public attention to the justices’ lack of clear rules has gone through cycles of intensity and inevitable tailing off through the years. But the current scrutiny has not ebbed, because of recurring news media reports on justices’ off-bench conduct.

Since last spring, ProPublica, in particular, has documented resort travel and other financial benefits that Thomas has received – and failed to report on requisite financial disclosure forms – from Crow and other monied benefactors. A lawyer for Thomas said in August that delays or filing errors were “inadvertent” and described public criticism of Thomas as “political blood sport.”

Last week, in an episode triggered by a New York Times report, the Senate Finance Committee released information related to a $267,230 loan that Thomas had obtained in 1999 for his luxury motorhome. Thomas’ lawyer has disputed the account but provided no details about the arrangement.

Some justices have told CNN that they do not, as a group, discuss such individual media reports, and no justice has publicly criticized Thomas. Even privately, justices are loath to disparage colleagues’ extracurricular activities.

They also say they cannot simply adopt rules that currently apply to lower court judges. Roberts has particularly pointed up the differences when it comes to potential conflicts of interest and recusals.

Unlike the nine justices, he said in a 2011 report, “(l)ower court judges can freely substitute for one another. If an appeals court or district court judge withdraws from a case, there is another federal judge who can serve in that recused judge’s place.”

Roberts has emphasized that the justices resist sitting in judgment of each other.

At this point, however, it seems that if the justices do not establish rules of conduct themselves, Congress will inevitably step in.

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