The Constitution might prohibit enforcing any ethical code in any way other than impeachment. That’s not the same thing as saying that there shouldn’t be one.
You would want to have pre approval to go on a trip that costs half a million dollars that had some even distantly related work conflict. Typically, for such a junket, an employee would at least pay the tax portion.
Take a GM executive out for dinner and the GM (at least when I did this) participant expected to pay their share. Walmart employees will toss a dollar on the table if they grab a can of soda during a business meeting on your premises.
There is a concept of avoiding even the perception of impropriety. Clearly Thomas just gives the middle finger digital salute when it comes to impropriety.
In this case, Thomas’ friend has gifted him millions of dollars in freebies, and it’s ok? You don’t see any hint of impropriety for accepting a $500k vacation when a Supreme makes $255k. It might be one thing if Thomas provided reciprocal trips to his good buddy that was worth about the same, or maybe his judgements aligned to “help” out his good buddy for “free?”
Really don’t know why you’re directing this at me.
There already is an ethical code, though.
While Supreme Court justices are not inherently subject to the Code of Conduct for United States Judges, they have voluntarily subjected themselves (link to 1991 resolution) to its provisions. Justice Thomas’s recent disclosures were in fact prompted by external rule changes, because the court chooses to follow those reporting rules.
In addition, federal law commands, and I quote with added emphasis,
28 U.S. Code § 455
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.
(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
(d) For the purposes of this section the following words or phrases shall have the meaning indicated:
(1) “proceeding” includes pretrial, trial, appellate review, or other stages of litigation;
(2) the degree of relationship is calculated according to the civil law system;
(3) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian;
(4) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
(i) Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund;
(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;
(iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(iv) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.
(e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.
(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.
~Max
The only requirement is good behavior. It is hard to determine the thinking behind judicial officers being impeached because it is certainly not authorized by the Constitution (see the impeachment of Sen. Blount for definition of officer). BUT I could see that the discussion was
“How do we decide when it turns into bad behavior?”
“We have this impeachment process that we can use for executive officers for high crimes and misdemeanors. Let’s just use that process to determine removal for not-good behavior for judicial officers.”
“Let’s do that!”
In my opinion, saying you’re “subject” to something means that there is an external enforcement mechanism. If I voluntarily declare that I’m “subject” to the golden rule or the 10 commandments or something, but the only thing anybody can ever do is tweet that I’m not following them, am I really subject to them?
It was known all along that he was an immoral, unqualified jerk. During his confirmation hearings, Anita Hilll testified to his sexual harassment plus other material on him was revealed. The Dems had more victims of his harassment waiting in the wings to testify. But the GOP tricked the Democratic head of the committee to put a time limit on the hearings and they ran out the clock. If the others had testified it would have been over for Thomas.
The person they suckered was a guy from Delaware named Joe Biden. I wonder whatever happened to him.
I was a lawyer for 30 years, and sat through my share of required legal ethics classes, and it is important to know that legal ethics as taught to lawyers are quite a bit different than moral ethics as taught in a philosophy or religious class. “Legal ethics” are far too concerned with piddly stuff such as the requirement to maintain legal malpractice insurance and requiring the clients’ funds not be commingled with the attorney’s.
It appears that it’s not just Justice Thomas who has a weak set of judicial ethics.
Justice Sotomayer has written a number of books. When she goes to speak at conferences, her Supreme Court staff lean on the conference organizers to ensure lots of books get bought in advance for the book-signings.
That’s an outright use of government employees for personal profit.
The Nine need a clear, enforceable, code of conduct.
The Constitution says that the justices can’t be removed. But it doesn’t say they can’t go to jail. I suppose the Supremes could rule that jailing one of their own, while the court was in session, is effective removal. But there are plenty of days when the court is not in session.
I suggest that Congress needs to pass a law. And the penalty for doing what Justice Thomas seems to have done should be something on the order of four weekends in jail with no access to any screen. As for how effective this would be as a deterrent, I think the answer is – very. In case I’m wrong about that, jail time can be increased to the entire summer recess. As for what the law should prohibit, that’s where I believe in being strict, Do not accept gifts of value, or money for services performed, from anyone except immediate relatives. Want to teach law students over the summer? Do it for free! The chance that you will have to rule on a higher education-related case is high, so accepting their money is a big conflict of interest. Want to write a book? Well, the chances of your having to rule on a copyright case is high, so you can’t accept publisher money either. If you really have lots of free time, put it up for free download.
P.S. Regarding ethics classes, I am a recently retired government employee, While I had to take ethics training every year or two, it had nothing to do with what would I consider ethics. It instead had to do with the technical provisions of laws that have the word ethics in the title. So there are contractors that I worked with as an employee that I now can try to get a job with, and others that, for a short time period, I cannot. Ethically I shouldn’t ever switch sides from judging their performance to doing their job, but the law is more lenient than that.
Where? They can be impeached and removed just like other federal judges.
Responding to the last post:
I should have said something like that it is impractical to hold Supreme Court justices to high standards, or maybe any standards, through the impeachment process, in our hyper-polarized era. So my proposal is to attempt something slightly more conceivable – do it by Congress passing a public law making some of their failures, to discern moral righteousness, a misdemeanor.
Why only a misdemeanor? Well, some criminal justice research says that speed and certainty of punishment is more important for deterrence than severity. And the criminal justice system will move faster if the stakes – say, a few weekends in jail – are below the threshold for the right to a jury trial. That’s in addition to the concern that a public law perhaps would be struck down if it was constructive removal from office.
did you read where Justice Alioto stated that Congress has NO authority over SCOTUS?
Alito was interviewed for an article that appeared in the Wall Street Journal’s opinion section last Friday.
What he actually said was,
“I know this is a controversial view, but I’m willing to say it,” he says. “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.”
This implies that Justice Alito holds a certain interpretation of the following clause from Article III, section 2:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
That is, he doesn’t construe the above clause as empowering Congress to regulate the Court’s ethics, only its appellate jurisdiction. I could imagine an act of Congress regulating the Supreme Court’s ethics by stripping its appellate jurisdiction in cases where ethical rules are not satisfied. cf. 29 U.S.C. §101 et seq. (regulating court procedures by limiting jurisdiction of the courts to exclude restraining orders or injunctive relief in labor cases, subject to policy considerations) and §113 (defining the courts in §101 to include any court Congress can limit jurisdiction for). But cf. Supreme Court Ethics, Recusal, and Transparency Act, S.359, 118th Cong. (2023) (bill to regulate Supreme Court Justices directly and not via jurisdiction stripping).
~Max
Regarding the last post, Congress can surely decline to give Supreme Court justices their annual inflation salary increase if they continue to accept gifts and money from friends and businesses.
I don’t think that Congress should interfere with their judicial behavior directly, such as by forcing recusals. If that’s agreeing with Alito, so be it. However, he probably would not like my ideas better!
Well, regulating the Court by docking Justices’ raises would require careful implementation to comply with the compensation clause. Specifically, once a judge’s salary has been increased, it can never be decreased again. Twice has it been ruled unconstitutional to deny judges their annual inflation raise because in those particular years legislation cancelling the raises technically took effect after the fiscal year (and therefore the automatic raises) started. United States v. Will, 449 U.S. 200 (1980).
~Max
So be careful.
My point was that Congress can pass a carefully worded misdemeanor law, criminalizing Supreme Court justice conflicts of interest, that would pass constitutional muster. Fines are unfair to the less wealthy, so I personally like the idea of sending them to jail on days the court is not in session. But the disincentive to conflicts of interest can also be done as a fine no greater than the annual raise and deducted from next year’s pay (since convicted criminals commonly don’t pay fines). Alito could appeal his conviction, as is his right, but he admits his view is controversial.
While such a law may be unlikely to pass, I mention it because discerning moral righteousness without it is even more unlikely.