U.S. lawmakers called for an enforceable code of ethics for justices on the nation’s highest court Tuesday, saying recent concerns have once again highlighted that the U.S. Supreme Court is the one branch of the U.S. government that lacks those standards.
“The court should have a code of conduct with clear and enforceable rules so both justices and the American people know when conduct crosses the line. The current highest court in the land should not have the lowest ethical standards,” Senator Dick Durbin, chairman of the Senate Judiciary Committee, said Tuesday.
Unlike the executive and legislative branches and every other federal bench, the Supreme Court does not have a written ethics code. Justices are required to follow some ethics requirements as laid out in federal statutes.
Lawmakers are asking for those new guidelines following an investigation last month by journalism nonprofit ProPublica showing Justice Clarence Thomas has accompanied billionaire and conservative donor Harlan Crow on luxury vacations for the last two decades.
Thomas also faces concerns about conflicts of interest due to his wife’s involvement in attempts to overturn the results of the 2020 presidential election that culminated in the January 6, 2021, attack on the U.S. Capitol. He has served on the court since 1991 when he was narrowly confirmed after public accusations of sexual harassment.
In an April 7, 2023, statement, Thomas explained why he did not report his gifts from Crow, whom he described as a close personal friend.
“Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,” Thomas said.
The ethics concerns arise with public trust in the nation’s highest court at an all-time low. According to an October 2022 Gallup poll, only 40% of Americans approve of the job the Supreme Court is doing, and 58% say they disapprove — the highest number since that poll started in 1972.
But Senate Republicans pointed to ethics concerns about liberal-leaning Supreme Court justices and said this is just the latest attack from Democrats who are unhappy about a conservative majority on the court.
“This assault on Justice Thomas is well beyond ethics,” Republican Senator Lindsey Graham said Tuesday. “It is about trying to delegitimize a conservative court that was appointed through the traditional process.”
Republicans said they were concerned by previous inflammatory remarks made by Senate Majority Leader Chuck Schumer suggesting justices should fear the consequences of their decisions. Republicans have also suggested that justices should receive increased security in light of threats to Justice Amy Coney Barrett’s children and a suspected assassination attempt against three conservative justices.
“Every five minutes, the Democratic Party wants to give lectures about upholding our institutions and protecting democracy,” Senate Minority Leader Mitch McConnell said on the Senate floor Tuesday. “But just as often, they find a way to undertake some new reckless attack against the courts and the rule of law. I’m proud of how our nation’s highest court has weathered these latest baseless attempts to attack its authority.”
Multiple pieces of legislation have been introduced in the U.S. Senate that if passed would institute a code of conduct governing justices. Independent Senator Angus King and Republican Senator Lisa Murkowski would hold the Supreme Court to the same standards as other federal judges. Democratic Senator Sheldon Whitehouse also introduced legislation that would require justices to submit to the same ethics standards as members of Congress.
“The Supreme Court has the lowest ethical standards in government,” Kedric Payne, vice president, general counsel and senior director of ethics at the Campaign Legal Center, told senators on Tuesday.
“The Supreme Court does not have an internal ethics enforcement body," Payne said. “Justices rely on ethics advice from random and anonymous sources instead of in-house ethics experts. This leads to incorrect and inconsistent interpretations of the law. Also, investigations of misconduct are extremely rare.”
Durbin invited Chief Justice John Roberts to testify before the Senate Judiciary Committee about those concerns and possible solutions. Roberts declined, citing the separation of powers under the U.S. Constitution and the need to preserve judicial independence.