Does The Supreme Court Have Ethics? Yes But No Way to be Enforced

 By Jodi Kantor and Abbie VanSickle

 The New York Times

As the summer of 2023 ended, the justices of the U.S. Supreme Court began trading even-more-confidential-than-usual memos, avoiding their standard email list and instead passing paper documents in envelopes to each chambers. Faced with ethics controversies and a plunge in public trust, they were debating rules for their own conduct, according to people familiar with the process.

Weeks later, as a united front, they announced the results: the court’s first-ever ethics code. “It’s remarkable that we were able to agree unanimously,” Justice Neil M. Gorsuch said in a television interview this year.

But a New York Times examination found that behind the scenes, the court had divided over whether the justices’ new rules could — or should — ever be enforced.

Justice Gorsuch was especially vocal in opposing any enforcement mechanism beyond voluntary compliance, arguing that additional measures could undermine the court. The justices’ strength was their independence, he said, and he vowed to have no part in diminishing it. 

In the private exchanges, Justice Clarence Thomas, whose decision not to disclose decades of gifts and luxury vacations from wealthy benefactors had sparked the ethics controversy, and Justice Samuel A. Alito Jr. wrote off the court’s critics as politically motivated and unappeasable.

ImageJustice Neil M. Gorsuch, wearing a dark suit, sits in an off-white armchair with a microphone in one hand and a pair of glasses in the other.

Behind the scenes, Justice Neil M. Gorsuch argued against an enforcement mechanism for the Supreme Court’s new ethics code.Credit...Tierney L. Cross for The New York Times

The three liberal justices insisted that the rules needed to be more than lofty promises. But their argument never had a chance.

To piece together the previously undisclosed debate, The Times interviewed people from inside and outside the court, including liberals and conservatives, who spoke on the condition of anonymity to discuss the proceedings and the justices’ thinking. This article also draws upon public statements by the justices, who declined to comment.

While the court was praised for setting ethics rules, the lack of an enforcement provision has been criticized by ethics experts and figures on the left. One year later, the justices’ internal debate has spilled into a wider, more fractious one. 

President Biden and Democratic lawmakers have called for a code with teeth. Justices Elena Kagan and Ketanji Brown Jackson have publicly pledged support for an enforcement mechanism. Outside legal experts have circulated proposals that would enlist the guidance of other federal judges. The conservative pushback has been strong and sometimes furious.

Now the election of former President Donald J. Trump, and a new era of unified Republican government, are raising the stakes for a branch supposed to serve as an independent guardrail. The court, which has a conservative supermajority, is already perceived as partisan by many Americans. And the justices largely appear to be split along the same lines on how far to go to ensure that its rules are followed.

Outside the court, critics say they are trying to bolster trust in the institution by holding the justices to similar standards as lower-court judges. Because no outsiders are involved in enforcing the new code, it lacks “any way to give the justices a chance to look in the mirror,” said Jeremy Fogel, a retired federal judge appointed by President Bill Clinton and a judicial ethics expert who recently proposed an enforcement plan.

Many conservatives, however, suspect liberals of trying to make ideologically driven incursions on the court. “I’m distrustful of calls for reform or change, because they’re so motivated by antipathy to the current court’s decisions,” said Thomas Griffith, a retired federal judge appointed by President George W. Bush. He and others argued that more stringent oversight could weaken the court’s integrity, because it could be used as a weapon, or give rise to constant warfare about which justices would hear each case.

Even as Judges Fogel and Griffith made opposing points, they acknowledged the danger of a debate about judicial conduct that splits along partisan line.

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