“Compromised beyond measure”: Experts urge Senate to pass SCOTUS ethics code amid Alito flag debacle

A prominent legal expert says Senate passage of Sen. Sheldon Whitehouse’s bill to require the Supreme Court to adopt a stronger ethics code could send a powerful message – even if its passage through the current House of Representatives is a likely impossibility.

Sen. Whitehouse, D-R.I., introduced his bill in February 2023 in the wake of ProPublica’s reporting on Justice Clarence Thomas’s long history of accepting gifts and trips from a powerful conservative billionaire friend. 

The nine justices announced unanimous opposition to the bill, which has languished since the Democratic-led Senate Judiciary Committee advanced the legislation in July 2023. Republicans in Congress and the Senate predicted the bill would go nowhere.

Still, the Supreme Court ended up adopting an ethics code that legal experts widely derided as unenforceable. 

James Sample, a Hofstra University constitutional law professor, said that the public pressure, along with Whitehouse’s bill, had an impact on justices long resistant to adopting such a code.

He noted that in 2011, Chief Justice John Roberts used his state of the judiciary remarks to dispute the very idea that there was any reason for such a code.

“Do I think that the court should or the Senate should pass the bill? Absolutely," Sample told Salon. "Do I think that it's likely to happen before the election? No, but crazier things have happened. And change is often precipitated by dramatic and easily understandable events. And, you know, if Justice Alito doesn't want Congress to impose an enforcement mechanism, he and Justice Thomas at some level have only themselves to blame.”

Sample said that if the Supreme Court had adopted an enforcement mechanism or honored longstanding norms, "we might not be having this discussion."

"There's at a certain point a dynamic whereby the court by failing to rein itself in, by failing to self regulate in a meaningful way, is presenting really only two options," Sample said. "Either we just accept a Supreme Court that is compromised beyond measure, and where there's no recourse. Or the other branches have a constitutional duty and power to step in and promote due process."

In the wake of The New York Times’ reporting on political flags flown at two Alito residences – including his beach house – Whitehouse is again calling for passage of his bill, which he said would add much-needed teeth. 

Legal experts, including University of Virginia School of Law professor Amanda Frost, have told Salon that Alito has a responsibility to avoid creating perceptions that undermine the judiciary's legitimacy with public political statements and affiliations.

Sample said he felt like the initial report of an upside-down flag – a symbol of the Stop the Steal movement — flown at the Alito home in the wake of the Jan. 6 insurrection was a “relatively minor kerfuffle” compared to concern over Justice Clarence Thomas’s ruling on Jan. 6 cases despite his wife’s role in the movement.

“The fact that there's a second flag, though, utterly contradicts Justice Alito’s initial explanation for the first flag,” Sample said. “And the fact that there's a second flag is actually an indication that not only is Justice Alito a partisan and participating in the political process in ways that judges are not supposed to, but that he actually has contempt for the very notion of judicial ethics concerns.”

Alito spoke to a Fox News reporter to defend the upside-down flag flown at his house, which he said occurred briefly and following a neighborhood dispute involving his wife.

ProPublica also revealed Alito's luxury fishing trip with a GOP billionaire Paul Singer, who later had cases before the court. 

“No one ever asks justices what the facts are,” Sample said. “Justices speak in right-wing media or leak through sources, but no official statements where you tell the truth or face penalties.”

SO, WHAT WOULD THE BILL DO?

The bill would give the Supreme Court 180 days to issue a procedure for individuals to file complaints alleging that a justice has violated the code of conduct, disqualification rules laid out in U.S. code § 455, “any other applicable provision of federal law” or “has otherwise engaged in conduct that undermines the integrity of the Supreme Court.”

Once the Supreme Court submits a complaint, the court would then submit it to a judicial investigation panel composed of five randomly selected judges from among the chief judges of each of the U.S. circuits.

The panel would review and investigate the complaints using hearings, testimonies and subpoenas. Then, it would present findings and recommended actions that could include dismissal of the complaint, disciplinary actions or changes to Supreme Court rules or procedures.

The panel could publish its findings about recommendations for dismissed complaints if it finds publication would further the public interest.

The counselor to the chief justice would also set rules for disclosure of gifts, income and reimbursements.

The bill also sets forth rules for disqualification: including when a justice knows a party to a proceeding spent money to support his or her nomination. Justices would also face disqualification when they, a family member or their private held entity receives a gift from a party in a proceeding. And justices would have a “duty to know” and to ascertain whether a proceeding could “substantially” affect their or their family’s financial interests. 

“If at any time a justice, judge, magistrate judge, or bankruptcy judge of the United States learns of a condition that could reasonably require disqualification under this section, the justice or judge shall immediately notify all parties to the proceeding,” the bill reads. 

Supporters say the bill would build on current ethics codes for federal judges.

The Supreme Court's current ethics code — based on the existing Code of Conduct for lower federal court judges — requires that judges and justices “refrain from political activity” and avoid “all impropriety and appearance of impropriety in all activities.”  And the Code of Conduct states that a “judge should not knowingly make public comment on the merits of a matter pending or impending in any court.” 

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WHO IS OPPOSING THE BILL?

Alito himself has balked at calls for more transparency and stringent ethical requirements, telling the Wall Street Journal last summer that “Congress lacks the power to impose a code of ethics on the Supreme Court.”

"The traditional idea about how judges and justices should behave is they should be mute,” Alito said. “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."

Salon examined lobbying and nonprofit records, and found that the conservative Heritage Foundation reported lobbying on Whitehouse's bill in 2023. 

A representative of the Heritage Foundation did not respond to request for comment Thursday. 

Ginni Thomas, a former congressional staffer, once worked at the Heritage Foundation. Justice Thomas failed to report his wife's income from the Heritage Foundation from 2003 to 2007, the Los Angeles Times reported in 2011. 

In a July 2023 post, the Heritage Foundation derided the legislation as responding to a "fake 'ethics crisis' and seeking to create "new ways to manipulate the Supreme Court and its decisions." 

The conservative think tank criticized the bill for allowing "unlimited" complaints against justices.

WHAT COULD COME NEXT?

Legal experts say there's a growing consensus that the Constitution does not prove a barrier to Congress requiring the Supreme Court to adopt an ethics code with an enforcement mechanism. 

"The Constitution absolutely both not only permits Congress to do that, but really contemplates that Congress will do that," Jennifer Ahearn, senior counsel in the Brennan Center’s Judiciary Program, told Salon.

In a recent article in Hofstra Law Review, Ahearn and her co-author argued that because the court lacks the power of force or purse to wield its power, the public's "collective acceptance of the Court's authority... is the linchpin of its power."

"But, contrary to the views of Justice Alito and others, merely because there are limitations on Congress’s authority to regulate in this space, it does not follow that Congress has no authority to do so," the article reads. "Given the structure of the Constitution, Congress needs to protect both of these two types of judicial independence: independence from outside corrupting influences and independence from improper interference from the other branches."

Sample, who testified on the bill before the Senate Judiciary Committee last year, said that from the Supreme Court's inception, Congress has provided its funding, set the number of justices and regulated the court through the recusal statute. 

"While it is true that the court is a co-equal branch, as Justice Kagan has said pointedly in her remarks, if the court were not amenable to being regulated by the other branches, then it would be the only branch for which that would be true," Sample said. "And it doesn't make sense that that would be the structure that was intended without it being expressed."

Still — the bill's passage faces steep hurdles in Congress as it stands today.

But Sample said the bill's passage in the Senate could send another powerful message to the Supreme Court.

And Ahearn said that party dynamics could always shift.

"These things take time," she said. "And so you've got to work on them, even if you can't guarantee that they would pass in the timeframe that you would like."