Breaking Down the Supreme Court’s Ethics Rules as Justices Come Under Fire

8 minute read

The U.S. Supreme Court is facing mounting pressure to address its procedures for handling potential conflicts of interest amid a recent string of ethical questions involving the Justices. 

The Justices rely on self-policing mechanisms to uphold ethical standards and maintain the integrity of the court. But with public trust in the judiciary the lowest it’s been in 50 years, some are pushing for more stringent and enforceable policies. 

The latest Supreme Court scandal involves Justice Samuel Alito's controversial display of an upside-down American flag—a symbol associated with the "Stop the Steal" movement—outside his home following the 2020 election. Alito has refused to recuse himself from pending cases related to former President Donald Trump and the Jan. 6, 2021 attack on the Capitol, despite concerns about that flag and another flag associated with Jan. 6 flown at another of his properties, has sparked renewed criticism and raised questions about judicial impartiality.

“The two incidents you cite do not meet the conditions for recusal,” Alito wrote in a letter distributed by the Supreme Court on May 29. “As I have stated publicly, I had nothing whatsoever to do with the flying of that flag. I was not even aware of the upside-down flag until it was called to my attention.” (Alito has said his wife chose to fly the flags.)

Critics argue that without external checks and balances, the potential for conflicts of interest and ethical lapses among the Justices remains a significant concern, highlighting the need for comprehensive reform to restore public confidence in the judiciary. “We are in a moment of real crisis with respect to public trust of the Supreme Court,” says Alicia Bannon, a constitutional lawyer and director of the Judiciary Program at the Brennan Center for Justice. “And that trust has to be earned.”

Here’s what to know about the ongoing debate surrounding Supreme Court ethics.

Does the Supreme Court have a code of conduct?

The nine Supreme Court Justices in Nov. 2023 unanimously adopted the institution’s first-ever code of conduct. The code, comprising five canons that include avoiding “impropriety and the appearance of impropriety in all activities” and engaging in outside activities “consistent with the obligations” of the office, represented a departure from the court's previous resistance to formalized ethical guidelines.

The unveiling of the code was met with mixed reactions, with critics pointing out several loopholes and ambiguities. One major concern is the absence of clear enforcement mechanisms, raising doubts about how the code will be upheld and whether Justices would face consequences for violations. Without robust enforcement, skeptics argue, the code may lack the teeth needed to truly hold Justices accountable for ethical breaches. 

Sen. Sheldon Whitehouse, a Democrat from Rhode Island who has been probing the Supreme Court’s ethics issues, said in a video after the code was made public that “the job is not done”  until there are more answers about accountability. “The real test now is: how do you enforce it? Is there a place where you can file a complaint against a Justice? Who sorts out the ridiculous complaints from the legitimate ones? For the legitimate ones? Who does the fact finding about what happened?” he asked.

How are ethics violations enforced?

Alleged ethics violations within the Supreme Court are typically enforced through a combination of internal accountability mechanisms and external scrutiny. But unlike other branches of government, there is no formal mechanism in place specifically designed to hold Justices accountable for misconduct. The primary avenue for addressing serious ethical breaches remains impeachment, a process that has occurred only once in the court's history, back in 1803.

Instead, enforcement largely relies on self-policing within the institution, with Justices responsible for upholding ethical standards among their peers.

Bannon says that when it comes to allegations about ethical conflicts, there is no formal process  to ensure accountability or transparency among the Justices, leaving the public reliant on sporadic disclosures and voluntary actions by the court. “It's a fact of human psychology that we're very bad judges of our own biases,” she says. “That’s why it's important to take some of these decisions out of the judges’ individual hands.”

Does Congress have the authority to regulate Supreme Court ethics?

The Constitution grants Congress the authority to regulate certain aspects of the Supreme Court. But the extent to which Congress can directly regulate Supreme Court ethics has been subject to debate and interpretation.

Historically, Congress has exercised its authority by enacting legislation that sets forth ethical standards and requirements for federal judges and Supreme Court Justices. For example, Congress has passed laws mandating financial disclosure requirements for federal judges, including Justices of the Supreme Court, to promote transparency and accountability.

But Alito asserted in 2023 that Congress has no authority to regulate the Supreme Court despite the ethical regulations Congress already imposes on the Justices. Some legal scholars have also argued that Congress may have limited authority to impose disciplinary measures or enforce ethical standards on individual Justices, as this could potentially encroach upon the separation of powers between the legislative and judicial branches.

Lawmakers have already introduced legislation that would require the Supreme Court to adopt a binding code of conduct and develop a process for enforcement, as well as strengthen recusal rules, but the legislation has been stalled in the Republican-led House of Representatives, where lawmakers claim the push is a politically motivated attempt to undermine the legitimacy of a conservative majority court. 

What are the ethics allegations facing the Supreme Court Justices?

Alito is facing scrutiny after The New York Times reported in May 2024 that he flew an inverted flag outside his house in Virginia following the 2020 election, a symbol associated with the "Stop the Steal" movement, which aimed to challenge the legitimacy of President Joe Biden’s victory over Trump. Alito said the flag was briefly flown by his wife amid a dispute with neighbors, and that he had no part in it. The New York Times then reported that the Alitos had flown an “Appeal to Heaven” flag outside their New Jersey vacation home in 2023, another symbol associated with Jan. 6, support for Donald Trump, and religious conservatism. "My wife is fond of flying flags," Alito wrote in his letter to lawmakers. "I am not.” The incidents have raised concerns about Alito hearing cases related to the Jan. 6 riot and Trump’s role in it.

Alito faced criticism last year after ProPublica reported in June 2023 that he took a luxury fishing trip with billionaire Paul Singer, whose hedge fund has had repeated involvement in cases before the court, without disclosing it. Alito defended his actions in a Wall Street Journal op-ed published before the ProPublica report, claiming ignorance of Singer's connections to court cases and asserting that he did not feel obligated to disclose the trip. Alito also came under fire after his involvement in the case Burwell v. Hobby Lobby drew attention after The New York Times reported in November 2022 that a conservative activist was privy to the ruling in 2014 following a dinner with donors and Alito, a revelation that sparked a hearing before the House Judiciary Committee.

Justice Clarence Thomas has been a focus of inquiry in recent years for accepting gifts and luxury travel from GOP mega donor Harlan Crow without disclosing them as required by federal law. Thomas also faced criticism for his wife Ginni Thomas' rightwing activism and her involvement in efforts to overturn the 2020 election, which raised concerns about potential conflicts of interest as Thomas heard cases related to the election. Thomas has faced allegations regarding a substantial loan he received from a wealthy friend, Anthony Welters, which he allegedly never repaid in full, a Senate investigation found. Questions arose about the proper reporting of this loan on Thomas' taxes and financial disclosures. Thomas has not directly commented on the incident, though his lawyer disputed the Senate investigation’s findings, telling the New York Times that the loan was never forgiven.

Other Justices, including Sonia Sotomayor and Neil Gorsuch, have also faced scrutiny for various ethical concerns. Sotomayor's staff reportedly pressured public institutions to buy copies of her books during her speaking engagements, though the Supreme Court denied that attendees of events featuring Sotomayor were ever required to purchase her book. Gorsuch was accused of selling real estate to the head of a law firm with cases before the court, without naming the buyer on his financial disclosure forms. He has not directly commented on the matter.

Chief Justice John Roberts came under scrutiny in January 2023 due to reports of his wife's significant earnings from her work as a recruiter matching attorneys with law firms. Concerns were raised about the potential influence of these earnings on the Chief Justice's decisions and the perception of impartiality. "This complaint raises troubling issues that once again demonstrate the need for a mandatory code of conduct for Supreme Court Justices," Senate Judiciary Committee Chairman Dick Durbin, an Illinois Democrat, said in a statement at the time.

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