Trust in high court reliant on its ethics

Once again, the Supreme Court is finding its ethics under scrutiny. Last week, Justice Clarence Thomas declined to recuse himself in a case involving the plot to overturn Arizona’s 2020 presidential vote, despite his wife’s efforts to pressure state lawmakers to set aside Joe Biden’s victory there. Then the New York Times reported Saturday on allegations that a decision in a 2014 case involving contraception and religious rights leaked to a high-profile abortion foe — a troubling precursor, if true, to the breach that occurred this spring when a draft opinion of its decision to overturn Roe v. Wade became public.

Unlike other federal judges, the justices on the Supreme Court are subject to no code of conduct. It is time for the court, led by Chief Justice John G. Roberts Jr., to set ethics standards for itself that are transparent, consistent and actually work. At stake is no less than its legitimacy, which has been battered by growing public doubts that it truly operates as an apolitical arbiter of the law.

The Post reported in June that Justice Thomas’s wife, Virginia “Ginni” Thomas, urged at least 29 Arizona lawmakers to overturn the popular vote in their state following the 2020 presidential election, asking legislators in one email to “fight back against fraud” and “ensure that a clean slate of Electors is chosen.” Despite his wife’s efforts to upend the election result, Justice Thomas failed to recuse himself earlier this year from a case involving the House committee investigating the Jan. 6 Capitol attack by Trump supporters who were seeking to achieve the same end. The panel, which she had called an “overtly partisan political persecution,” subsequently interviewed Ms. Thomas about her post-election 2020 activities.

Justice Thomas once again declined to recuse himself last week from a case regarding Arizona GOP Chairwoman Kelli Ward’s alleged efforts to set aside the 2020 presidential vote in her state. He was one of two justices who dissented from the court’s decision allowing the Jan. 6 committee to access some of Ms. Ward’s phone records.

Washington is populated by countless power couples, and conflicts of interest — or appearances of them — are bound to occur from time to time. But Ms. Thomas’s activities stand out as particularly blatant. “Ginni Thomas has held so many leadership or advisory positions at conservative pressure groups that it’s hard to keep track of them,” the New Yorker’s Jane Mayer wrote earlier this year. “And many, if not all, of these groups have been involved in cases that have come before her husband.” One glaring example: Ms. Thomas’s consultancy received more than $200,000 from right-wing activist Frank Gaffney’s Center for Security Policy, according to Ms. Mayer, as Mr. Gaffney urged the court to rule favorably on President Donald Trump’s Muslim ban. Justice Thomas voted to uphold the ban, and he did not disclose the $200,000 payment to his wife.

Meanwhile, the Times reported Saturday that a former anti-abortion activist, the Rev. Rob Schenck, claims that he was told how the court would rule on a major 2014 birth control case, saying that Justice Samuel A. Alito Jr. tipped off two associates of his. There is limited corroborating evidence, and Justice Alito and others allegedly involved deny this happened. Yet Mr. Schenck’s contemporaneous emails and conversations indicating that he knew the case’s outcome and the author of the opinion are reason to worry. He says he ran “Operation Higher Court,” a years-long effort among conservative activists to ingratiate themselves with justices via donations to the Supreme Court Historical Society, meals and trips to places such as Jackson Hole, Wyo. “I saw us as pushing the boundaries of appropriateness,” Mr. Schenck said, and the Times’s reporting suggests his operatives achieved high levels of access to certain justices.

An ethics code binds lower-court judges but not Supreme Court justices. Chief Justice Roberts says that justices refer to the code but make their own ethical calls. This is not enough. The justices should formally bind themselves to a judicial code of conduct, rather than simply consulting one when they are so inclined.

Then there is the question of how to enforce such rules. One option is to have the whole court review requests that, for example, certain justices recuse themselves. Another is to create a panel of outside judges, perhaps distinguished retired jurists whose work the high court no longer oversees, to consider Supreme Court ethical questions referred to them.