SCOTUS lays down a code of conduct

You might think that the august band of American lawyers called the United States Supreme Court would have, down the centuries, seen fit to put down in writing a code of ethical conduct for its members just because ... well, because it's the right thing t

After all, a formal ethics code has long been in effect for the judges of the other federal courts. But the rules have never been used for the Supreme Court, supposedly because its “special constitutional status” makes it ... what, impervious to potential wrongdoing?

In any case, in the face of public criticism of several of its members taking lavish trips and accepting gifts and loans paid for by powerful and wealthy Americans, the court finally issued some guidance for itself last week.

The justices say they have created the code of conduct — nine pages; short, by government standards — “to set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the members of the court.”

“For the most part these rules and principles are not new,” the court said, saying they are based on the other federal courts' rules, but

“the absence of a code, however, has led in recent years to the misunderstanding that the justices of this court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.”

That's smart, that's fine; better late than never. But it's hard not to notice that there is literally no reference in the nine pages as to how the code of conduct would be enforced. Who decides on a punishment for wrongdoing? Not much teeth in such an absence.

Rather than delve into the particulars of what kind of gifts or favors could be accepted, the code says justices should not engage in conduct that might “detract from the dignity of the justice's office,” “interfere with the performance of the justice's official duties,” “reflect adversely on the justice's impartiality” or “lead to frequent disqualification.” It also says that the Supremes should not allow “family, social, political, financial or other relationships to influence official conduct or judgment.”

We're glad to see in general that justices and their families taking lavish free vacations, for instance, will be frowned on in the future. And we're equally glad to see that members of the Supreme Court will still be able to sell books, for instance — public figures have the right to tell their story, and profit from it.

We would like to see some actual consequences laid out for transgressions — fines, and formal censures — and trust the justices are working on those and will release them soon.

But, as legal columnist Ilya Somin in Reason notes, the lack is “partly mitigated by the fact that the justices care about their reputations, and a justice who violates these rules is likely to take reputational damage. He or she can no longer claim that the relevant standards are unclear.”

On the other hand, as former Orange County Register columnist, now dean of the UC Berkeley Law School, Erwin Chemerinsky notes, “there is a crucial problem” in the code. “It continues to defer to each justice about whether he or she should be disqualified from hearing a particular case. There is no indication of any change in this disturbing practice.”

It took too long to produce the code, and the failure to do so has reduced public trust in the Supreme Court, just as the mess that is Congress has reduced faith in that branch of government. But we welcome its introduction at a critical time for the American experiment. To set down such a credo is to acknowledge that there are rights and wrongs, and that no government official is above the law.