The U.S. Supreme Court’s lack of an ethical code is undermining its legitimacy | Opinion

Within our tripartite system of government, courts have enormous power. As we have seen over the last few years, courts interpret our laws and constitutions both to recognize rights and to take them away. According to principles of federalism in the United States, the national government has supremacy over state governments. Thus, the Supreme Court is the most powerful court in our country. The current Supreme Court has boldly flexed its judicial power, overturning long-standing rights even in the face of established precedent and countervailing public opinion.

But courts, holding the power of neither the purse nor the sword, have no ability to carry out their edicts. Rather, judicial authority comes in the form of the legitimacy we grant them to be arbiters of our rights and responsibilities. In essence, the basis of judicial authority is trust in courts as fair and neutral mediators. The system works because the people and the government recognize the legitimacy of the courts.

The truth is, though, that courts are composed of judges, and judges are people subject to human errors. Judges hold political opinions, have blind spots, suffer from biases and struggle with the same thinking errors all other humans do. To reconcile these aspects of humanity with the need for a fair and neutral judiciary, virtually all courts have adopted broad ethical canons and codes of conduct.

These ethical rules are designed not only to ensure that judges don’t operate under actual conflicts, but much more broadly, to acknowledge the importance of public confidence in judicial impartiality. For that reason, judicial codes of conduct are designed to protect not only against actual conflicts but also against any appearance of impropriety or perception of the lack of neutrality.

Federal and state judges across the country are bound by these codes which set strict rules for judicial conduct on and off the bench.

Scandals involving judges are not unheard of. In 1969, U.S. Supreme Court Justice Abe Fortas found himself embroiled in one. Though Justice Fortas’ acceptance of a $20,000 retainer from a friend’s foundation was neither illegal nor a violation of any rule or standard, his receipt of the funds undercut the appearance of the court’s neutrality. Prioritizing the importance of public confidence in the court, the remaining Supreme Court justices pressured Justice Fortas to step down. Fortas resigned from the court.

Justice Fortas’ conduct pales in comparison to the ethics scandals roiling the current Supreme Court. Justices Samuel Alito and Clarence Thomas have benefited from destination vacations, VIP sports passes, helicopter flights, and private resort stays sponsored by wealthy conservatives. In addition to trips on superyachts and private jets, Thomas has accepted direct payments of school tuition and secret payments to his wife as gifts from private donors. Both Thomas and Justice Neil Gorsuch have sold properties to individuals with business before the court. And, perhaps most concerning, Alito has refused to remove himself from a case being litigated by an attorney he selected to help defend himself against prior allegations of wrongdoing.

The current Supreme Court is not prioritizing judicial legitimacy as a prior court did with Fortas. Even in the face of significant and ongoing scandals, the U.S. Supreme Court refuses to adopt a code of ethics, standard of conduct, or binding rules to govern their conduct. When confronted by legitimate concerns, the current court has not stepped forward to protect the appearance of neutrality so central to our judicial system. Even under pressure, Justice John Roberts declined a request to appear before Congress to discuss the scandals, and Alito has boldly claimed that Congress has no authority to impose a code on the court.

The current Supreme Court’s position is arrogant and dangerous. The judicial branch is not uniquely impervious to checks and balances, and the justices’ claims that it should imperil the legitimacy of our entire governmental system. The American Bar Association has adopted a resolution calling on the Supreme Court to adopt binding ethics rules. “If the legitimacy of the Court is diminished, the legitimacy of all our courts and our entire judicial system is imperiled,” the resolution says. The American people agree with the lawyers, judges, politicians, and scholars calling for the Supreme Court to be bound by standards of ethics and conduct.

This Supreme Court has boldly flexed its judicial power, overturning established rights and precedent. While it is within the court’s authority to do so, the source of that power rests with its legitimacy; it would be wise for the court to recognize the importance of integrity as the foundation of the power it wields.