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Restoring America’s confidence in our court system with a code of conduct

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Restoring America’s confidence in our court system with a code of conduct

Sep 25, 2023 | 6:50 am ET
By John A. Tures
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Restoring America’s confidence in our court system with a code of conduct
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A view of the front portico of the United States Supreme Court building in Washington, D.C. (Getty Images)

American confidence in the U.S. Supreme Court has plunged to historic lows.

It’s not so much because of their rulings, but the behavior of individual justices, and their method of selection. Without serious judicial reform, such mistrust of our highest court is going to trickle down to lower levels of the judiciary with consequences too dire to ignore.

Last month, Jeffrey M. Jones with Gallup Polling found that America’s approval rating for the Supreme Court stood at 40%, well below the 60% of Americans who said they approved of the way the court did its job back in 2000.

Now some attributed the low numbers to a series of conservative rulings on abortion, student loan debt forgiveness and knocking down race as a factor in collegiate admissions. But the Supreme Court also invalidated Alabama’s congressional map as violating the Voting Rights Act and turned away a challenge by state legislatures to invalidate district-drawing rulings this term.

Something else is different now.

What made the public really mad were the revelations that a Supreme Court Justice allegedly took a lot of trips and may have received a lot of undisclosed gifts from a donor who may well have had a vested interest in the outcome, according to Fortune Magazine. As the story grew, it turned out that this justice may not have been the only one receiving all kinds of gifts, or failed to disclose a lot, according to the Brookings Institution. One fears that these revelations may just be the tip of the iceberg.

Yet the Supreme Court currently is exempted from any sort of rules that might have prevented such a catastrophe.

“The nine justices of the Supreme Court are the only federal judges not bound by the Code of Conduct for U.S. Judges, which goes beyond the basic ethics laws enacted after Watergate and creates uniformity around thorny issues like recusals and participation in political activities,” writes an interest group called “Fix the Court.”

One would think that an embarrassed Supreme Court would do the right thing, and adopt at least a voluntary code of conduct to fix this glaring oversight when it comes to the disclosure of gifts, and the need to recuse oneself if there is a conflict of interest. After all, why should the Supreme Court be exempted from rules that would land lower court judges in a lot of hot water? But several court members and allies of theirs have spoken out against even the hint of reform.

Congress has now prepared to do the job that the highest court seems reluctant to even discuss. But reformers were opposed by the court’s defenders, who claim such actions would violate the separation of powers and checks and balances.

They’re wrong.

“As the history of congressional regulation of Supreme Court ethics makes clear, it is squarely within Congress’s constitutional power to ensure the integrity of a coequal branch by holding Supreme Court justices to high ethical standards. Since the founding, Congress has played a central role in regulating the ethical conduct of the justices, first by requiring them to take an oath written by Congress. Congress also sets the terms by which federal judges, including Supreme Court justices, retire and how they are compensated,” notes the Brennan Center.

Congress even passed laws about recusals and receiving gifts, but left it up to the courts to enforce this and come up with sanctions, which now seems like a mistake.