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Ethical no man’s land: can the US supreme court be trusted to police itself?

<span>Photograph: AP</span>
Photograph: AP

Last July Samuel Alito, one of the nine justices of the US supreme court, delivered the keynote speech at a gala dinner held in the gilded splendour of the Palazzo Colonna in Rome.

Related: Samuel Alito: the abrasive justice taking abortion rights back to the 17th century

Alito ruminated on the “proud civilization” achieved by the Romans two millennia ago, asking himself how modern America would be remembered thousands of years hence. “As I think back, I also think ahead, and I wonder what historians may say centuries from now about the contribution of the United States to world civilization,” he said.

Alito did not specify which aspects of contemporary American life he deemed especially worthy of remembrance. One feature that would be unlikely to make the cut in many people’s estimation would be the ethical standing of his own court.

The justice had been flown out to Rome by the Religious Liberty Initiative, an outpost of the University of Notre Dame law school that advocates for religious freedom informed by the Catholic tradition. This was not the group’s first contact with Alito.

The initiative and its faculty have filed amicus briefs with the supreme court in at least six high-profile cases since it was founded in 2020. Two of the group’s fellows filed amicus briefs arguing against the constitutional right to an abortion in Dobbs, the case that led to the court overturning Roe v Wade in a contentious ruling written by Alito.

It’s one thing for justices to speak at law schools, but when the Religious Liberty Initiative flies Alito out to Rome, that’s another thing entirely

Gabe Roth

That the justice should be hosted in grand style by a religious freedom group that has lobbied him multiple times in the past two years raises serious concerns among ethics watchdogs.

“It’s one thing for justices to speak at law schools, but when the Religious Liberty Initiative, which is filing amicus briefs in all sorts of supreme court cases, flies Alito out to Rome, that’s another thing entirely,” said Gabe Roth, executive director of Fix the Court, a non-partisan group which advocates for reform.

But Alito’s Rome jaunt is just one of many factors that have swung an ethical spotlight over the nation’s highest court in recent months.

A series of ethical scandals have struck the court, the most toxic of which was the refusal of conservative justice Clarence Thomas to recuse himself from a case in which Donald Trump tried to block documents relating to the 6 January 2021 insurrection at the US Capitol from reaching the congressional committee investigating the riot.

Justice Clarence Thomas, left, and his wife Virginia (Ginni). Thomas was the sole justice to rule in favour of Donald Trump’s attempt to block documents related to January 6 being passed to Congress, including texts from Ginni Thomas.

Thomas was the only justice to side with Trump. It emerged soon after that his wife, Ginni Thomas, had been deeply embroiled in the plot to overturn the 2020 presidential election and that several of her texts to the White House chief of staff, Mark Meadows, in the run-up to January 6 had been among the documents that Trump had wanted kept hidden.

The Thomas scandal, and other apparent breaches of fundamental ethical boundaries, have raised questions about the unique status enjoyed by the nine supreme court justices. They are the only state or federal judges in the country who bear no obligation to abide by a formal ethics code.

Unlike judges sitting in any other jurisdiction in the US – from city and county to state, tribal and federal – the five men and four women of the supreme court are left completely to their own ethical devices.

Now that exceptional privilege is coming under pressure. Last month the American Bar Association called on the justices to take on the full sweep of ethical rules, arguing in its resolution that the lack of such a code “imperils the legitimacy of the court”.

Earlier this month the non-partisan government watchdog Project on Government Oversight together with Lawyers Defending American Democracy published a model code that would bring the supreme court into line with other jurisdictions. They said that the dearth of formal guidelines had become “untenable – for litigants, the court and our democracy”.

Congress has waded in too. Chris Murphy, a Democratic US senator from Connecticut, has reintroduced the Supreme Court Ethics Act that would close what the Senate majority whip, Dick Durbin, called an “inexcusable loophole”.

The supreme court doesn’t have the power of the purse or the sword, it just depends on its ability to influence and persuade

Amanda Frost

The Democratic senator from Rhode Island Sheldon Whitehouse is spearheading a separate bill that would introduce a mechanism for investigating misconduct by the justices.

Though similar bills have failed in the past, there is a sense that there is wind in the sails of Congress on this subject. Democrats are increasingly concerned about the untethered nature of the increasingly extreme rightwing majority, while Republicans have been unnerved by the leaking of Alito’s draft abortion opinion in Dobbs and the failure to find the culprit.

This ripple of scrutiny comes at an awkward time for the justices. According to Gallup, public approval of the way they do business has fallen to a record low of 40%.

That matters, said Amanda Frost, a professor at the University of Virginia law school. “The supreme court doesn’t have the power of the purse or the sword, it just depends on its ability to influence and persuade. And that requires that it be viewed as legitimate.”

At the same time as public trust is waning, the new six-to-three conservative supermajority of the court engineered under Trump has wielded power in ways that have intimately affected the lives of millions of Americans. In addition to its abortion decision, the court has issued rulings that have left large swaths of the country feeling alienated and disaffected – on the climate crisis, gun laws and the influence of religion in public life.

This term the justices are turning their attention to a slew of new subjects that also have the potential to affect vast numbers of people. The docket includes a critical voting rights case in North Carolina that could radically alter the way federal elections are staged, a challenge to affirmative action in US universities, and Joe Biden’s plan to forgive student debt that would touch more than 40 million Americans.

“The supreme court arguably has more power now than it has ever had,” Roth said. “It is choosing who gets healthcare, who can pray, who has access to guns, who can vote – it even determines matters of life and death. In that setting, it’s only reasonable to expect a certain amount of transparency and accountability from its members.”

One critical area is recusals. The nine justices are bound by the federal recusal law, which states that “any justice, judge or magistrate judge of the United States” must “disqualify himself in any proceeding in which his impartiality might reasonably be questioned”.

The statute goes on to require recusal in cases in which the judge’s “spouse or minor child residing in his household, has a financial interest … or any other interest that could be substantially affected by the outcome of the proceeding.”

Though no one disputes that supreme court justices are subject to the recusal law, the absence of an ethics code means that there is no provision for enforcing it. The actions of Thomas and his wife, Ginni, over January 6 exposed the problem.

“It’s very clear what the statute says, and it was equally clear that Thomas’s wife had an interest in the case, and yet he didn’t recuse,” Frost said. “So through his actions, Thomas demonstrated that he believes he doesn’t need to follow the law.”

The justices have tried to defend their uniquely unaccountable status by saying it preserves their legal independence and by pointing out that they are not fungible – unlike other judges who recuse themselves, they cannot be replaced. The chief justice, John Roberts, has insisted that the top court has no need to adopt an ethics code because “every justice seeks to follow high ethical standards”.

Which might be fine, were it not for the many recorded failings of those same justices. Fix the Court keeps tallies of ethical lapses and failures to recuse by current and former justices.

They disclose a litany of private plane rides, dinners and gifts, attendance at politically partisan events, and inconsistencies in financial disclosures. By far the longest entry is for Thomas, whose peccadilloes include attending a 2008 retreat in Palm Springs organized by the rightwing Koch brothers at a time when the duo were funding several litigants presenting to the top court.

Occasionally, there have been hints that the justices are aware that they have a problem and that they have discussed the possibility of ethical reform. In 2019, Elena Kagan told the House of Representatives that she and her eight peers were “very seriously” considering an ethics code.

Last month CNN reported that those “internal discussions” were ongoing, and that some justices were hoping to draft a code “in due course”. But it seems that unanimity is proving elusive and, as a result, the silence coming from the bench remains deafening.

“We are dealing with a pattern of neglect when it comes to the justices’ ethical responsibilities,” Roth said. “Our highest legal officials should adhere to a moral code against which they and the public can measure whether they are upholding their oath of office.”