"Peak gaslighting": Legal scholars shred Supreme Court's spin on new "unenforceable" ethics code

The Supreme Court on Monday adopted an ethics code following a slew of bombshell discoveries about lavish gifts, real estate deals, and other allegations of ethics violations. 

The 14-page document detailed rules that are not technically new; however, a statement shared by the nine justices said that “the absence of a code 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." 

"The undersigned justices are promulgating this Code of Conduct to set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the Members of the Court," the statement added.

As the New York Times reported, the code does not specifically underscore prohibitions on gifts, travel, or property deals. It does, however, indicate that the justices should not engage in practices or situations that “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.” The code adds that the justices should "uphold the integrity and independence of the judiciary" and "avoid impropriety and the appearance of impropriety in all activities."

The notion of a congressionally-imposed ethics code has been met with opposition from justices in the past. Justice Samuel Alito in an interview with the Wall Street Journal this summer argued that "Congress lacks the power to impose a code of ethics on the Supreme Court." The statement came shortly after Democrats "pushed Supreme Court ethics legislation through a Senate committee, though the bill's prospects in the full Senate are dim,” as noted by the Associated Press. 

Alito, along with Justice Clarence Thomas, has in the past been accused of corruption. A ProPublica report released in June recounted how Alito accepted a gift of a fancy fishing trip to Alaska from right-wing billionaire Paul Singer. The 2008 trip included a seat on a private jet, valued at $100,000, accommodations at a fancy hotel, $1,000 bottles of wine and "multicourse meals of Alaskan king crab legs or Kobe filet." 

“I know this is a controversial view, but I'm willing to say it,” Alito added in the WSJ interview. “No provision in the Constitution gives them the authority to regulate the Supreme Court—period."

"Congress did not create the Supreme Court," he continued, while also touching on accusations leveled at his own judicial ethics. "I marvel at all the nonsense that has been written about me in the last year. The traditional idea about how judges and justices should behave is they should be mute. But that's just not happening, and so at a certain point I've said to myself, nobody else is going to do this, so I have to defend myself." 

As noted by Common Dreams, some watchdog organizations have regarded the newly installed ethics code with a fair amount of scrutiny. The Revolving Door Project, a group based out of Washington, D.C., called the code a "toothless PR student" in a statement shared to X/Twitter, on Monday.

"Today's so-called Supreme Court 'Code of Conduct' comes with no enforcement mechanism," wrote Revolving Door Executive Director Jeff Hauser. "This unenforceable public relations document serves absolutely no purpose other than to permit the media to revert to pretending that our unaccountable and unethical Supreme Court retains legitimacy."

Hauser in the statement hit out at Justice Thomas specifically, writing, "Beyond not being enforceable, this document reeks of a cover-up for, among others, Justice Clarence Thomas. This list of weak ethics-adjacent aphorisms is prefaced by a statement from the Justices that they have 'largely' been complying with the loose norms they set forth today. Yet Thomas' conduct, in particular, has long been at odds with any pretense to any remotely serious standard of ethics."

Legislators and legal experts likewise interrogated perceived holes in the code's construction. 

"The question is enforcement," argued Sen. Sheldon Whitehouse, D-R.I. "Where do you file a complaint; who reviews it; how does fact finding occur; who compares what happened to what’s allowed?  That’s where the rubber hits the road."

Sherrilyn Ifill, former president and director-counsel of the NAACP Legal Defense and Educational Fund, said that the court's statement stated that the code was created only because people "misunderstand" their practice is "peak gaslighting."

"It’s also the kind of small & begrudging statement that reveals how agonizing this was for some members of the Court. Which means they felt compelled, forced to do something they didn’t want to do. Those members wanted to be clear that in their view, THIS IS NOT NECESSARY. And yet the creation of the Code proves they know IT IS," she wrote. 

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"A Code of Conduct with no meaningful enforcement mechanism is a mere gesture," tweeted Anthony Michael Kries, an assistant professor of law at Georgia State University. 

NYU Law Professor Rachel Barkow agreed: "Without any kind of enforcement mechanism, this has all the heft of a set of New Year's resolutions."

Steve Vladeck, a federal courts expert at the University of Texas School of Law, argued that the issue has "never been" the court's failure to enact a formal ethics code.

"[I]t's the extent to which there is no means by which we can have any confidence that *whatever* rules apply to the justices are actually being followed. Today doesn't move *that* needle at all," he wrote. "I think it's a positive sign that the justices adopted at least *some* rules today (and a sign that the Court *is* reactive to public pressure, as I think it ought to be). But even the most rigorous ethics rules aren't worth that much if there's no incentive to comply with them."