Supreme Court’s new code of conduct lacks teeth
Hubert Seipel is a high-profile German journalist. He’s written two books about Russian President Vladimir Putin, and produced a documentary film about him, all of which are regarded as sympathetic to Putin.
Last month, a consortium of investigative journalists published documents leaked from Cypriot financial institutions that, among many other revelations, seemed to show that Seipel had received secret payments totalling 600,000 euros (currently a little over $650,000) from a Russian oligarch closely associated with Putin.
The Washington Post reported that Seipel “acknowledged receiving support” from the oligarch without confirming the sum. The leaked documents use the word “sponsorship” to describe the arrangement. His book publisher told the Guardian that it hadn’t known about the sponsorship.
Most journalists would regard such a secret sponsorship as wildly unethical. Seipel, however, insisted he maintained editorial independence. Which is nice, but if you read his books or saw his film, wouldn’t you like to know they were sponsored by one of Putin’s pet oligarchs?
The story about Seipel’s sponsorship agreement broke the day after the Supreme Court issued its new code of conduct. The court issued the code in response to news that two (at least) of the justices benefited from the generosity of billionaires. We can be sure those justices preserved their independence, just as Seipel did. But if your business or your life was upended by one of the justices’ opinions, wouldn’t you like to know who sponsored it?
The new code of conduct received a lot of attention in the press, but the coverage mostly missed the point the justices were trying to make. For example, the Los Angeles Times published an editorial with the online headline: “Supreme Court’s new ethics code falls short in solving its ethics problem.”
If you start from the premise that the court has an ethics problem, as the Times’ editorial board did, then the code is indeed inadequate, because it lacks both reporting and enforcement mechanisms. Each justice is the final judge of the propriety of his or her own conduct. The new code is a set of suggestions, not rules.
That’s a serious shortcoming if you believe the court has an ethics problem. But if you reject that starting premise, and instead proceed from the assumption that all justices have always acted ethically in all matters, then the lack of teeth is irrelevant. On that assumption, the code doesn’t require an enforcement mechanism because enforcement is unnecessary.
Which tells us what the justices believe about themselves.
Let’s recap the behavior the justices regard as ethically unimpeachable, emphasis on the unimpeachable. Justice Sonia Sotomayor used court staff to promote her books. The court issued a statement explaining the staffers were just trying to make sure would-be book buyers at Sotomayor’s public events weren’t disappointed. That is, the court admitted its staff was acting as her publicity agency, building her brand on the public dime.
Justice Samuel Alito flew a private jet to Alaska for some fishing and didn’t comply with federal disclosure law in a timely fashion, as he admitted in a Wall Street Journal op-ed. He sought to excuse his non-compliance with a legal argument that straddled the line between hypertechnical and frivolous, his legal judgment clouded by selfinterest.
Justice Clarence Thomas flew in a billionaire’s private jet and cruised on a billionaire’s superyacht, also without the timely disclosure required by law, as he admitted with a written excuse of remarkable lameness. (He, a Supreme Court justice, claimed to have relied on bad legal advice.) Subsequent reports have revealed a seemingly unending series of other big dollar gifts and favors. In September, ProPublica reported that Thomas flew by private jet to a political fundraiser, where he was photographed with David Koch.
On the Sleaze-O-Meter, where 1 is tacky and 100 is irredeemably corrupt, I’d put Sotomayor at 30, because so far as we know she didn’t receive anything of value from people with reasons to want to influence the court. If Alito took only the one undisclosed trip, I’d give him a 50. But Thomas, who’s approaching Senator Bob Menendez territory, scores a 90.
But keep in mind how unlikely it is that this year’s revelations constitute all there is to know about dubious behavior by the justices. We can’t assume reporters have uncovered everything.
Former President Richard Nixon was widely ridiculed for saying, “When the president does it, that means that it is not illegal.” But now all nine justices have issued a code of conduct that boils down to: “When a Supreme Court justice does it, that means it’s not unethical.” The new code of conduct can’t solve the court’s ethics problem because it’s a symptom of it.