These are the Supreme Court’s ethics rules

TThe U.S. Supreme Court faces increasing pressure to address its procedures to deal with potential conflicts of interest amid a recent spate of ethical questions involving the justices.

Judges rely on self-policing mechanisms to uphold ethical standards and maintain the integrity of the court. But with public confidence in the judiciary, the lower It’s been 50 years, some are pushing for stricter, more enforceable policies.

The latest Supreme Court scandal involves the controversial case of Justice Samuel Alito display of an upside down American flag—a symbol associated with the “Stop the Steal” movement—outside his home following the 2020 election. Alito refused to recuse himself from pending cases related to former President Donald Trump and the January 6, 2021 attack on the Capitol, despite concerns about this flag and another flag associated with January 6th flew to another of his properties, sparked renewed criticism and raised questions about judicial impartiality.

“The two incidents you cite do not meet the conditions for recusal,” Alito wrote in a letter distributed by the Supreme Court on May 29. “As I have stated publicly, I had absolutely nothing to do with the raising of that flag. I wasn’t even aware of the inverted flag until it caught my eye.” (Alito said his wife chose to fly the flags.)

Critics argue that without external checks and balances, the potential for conflicts of interest and ethical lapses among judges remains a significant concern, highlighting the need for comprehensive reform to restore public confidence in the judicial system. “We are in a moment of real crisis when it comes to public confidence in the Supreme Court,” says Alicia Bannon, a constitutional lawyer and director of the Judiciary Program at the Brennan Center for Justice. “And that trust has to be earned.”

Here’s what you should know about the ongoing debate surrounding Supreme Court ethics.

Does the Supreme Court have a code of conduct?

The nine judges of the Supreme Court unanimously adopted the institution’s first code of conduct in November 2023. The code, comprised of five canons that include avoiding “impropriety and the appearance of impropriety in all activities” and engaging in outside activities “consistent with the obligations” of the position, represented a departure from the court’s previous resistance to formalized ethical guidelines .

The code’s reveal was met with mixed reactions, with critics pointing out several loopholes and ambiguities. A major concern is the absence of clear enforcement mechanisms, raising questions about how the code will be respected and whether judges will face consequences for violations. Without robust enforcement, skeptics argue, the code may not have the teeth needed to truly hold judges accountable for ethical violations.

Senator Sheldon Whitehouse, a Rhode Island Democrat who has investigated the Supreme Court’s ethical issues, said in a video after the code was made public that “the work is not done” until there are more answers about accountability. “The real test now is: how do you apply this? Is there anywhere you can file a complaint against a judge? Who separates the ridiculous complaints from the legitimate ones? For the legitimate ones? Who investigates what happened?” he asked.

How are ethical violations enforced?

Alleged ethical violations at the Supreme Court are typically enforced through a combination of internal accountability mechanisms and external scrutiny. But unlike other branches of government, there is no formal mechanism specifically designed to hold judges accountable for misconduct. The primary avenue for addressing serious ethical violations remains impeachment, a process that has occurred only once in the court’s history, in 1803.

Instead, law enforcement largely depends on self-policing within the institution, with judges responsible for upholding ethical standards among their peers.

Bannon says that when it comes to allegations about ethical conflicts, there is no formal process to ensure accountability or transparency among judges, leaving the public dependent on sporadic disclosures and voluntary actions by the court. “It’s a fact of human psychology that we misjudge our own biases,” she says. “That’s why it’s important to take some of these decisions out of individual judges’ hands.”

Does Congress have the authority to regulate Supreme Court ethics?

The Constitution grants Congress the authority to regulate certain aspects of the Supreme Court. But the extent to which Congress can directly regulate the ethics of the Supreme Court has been the subject of debate and interpretation.

Historically, Congress has exercised its authority by enacting legislation that establishes ethical standards and requirements for federal judges and Supreme Court justices. For example, Congress has passed laws that impose financial disclosure requirements on federal judges, including Supreme Court justices, to promote transparency and accountability.

But Alito asserted in 2023 that Congress does not have the authority to regulate the Supreme Court, despite the ethics regulations that Congress already imposes on judges. Some legal scholars have also argued that Congress may have limited authority to impose disciplinary measures or impose ethical standards on individual judges, since this could potentially interfere with the separation of powers between the legislative and judicial branches.

Lawmakers have already introduced legislation that would require the Supreme Court to adopt a binding code of conduct and develop an enforcement process, as well as strengthen impeachment rules, but the legislation has stalled in the Republican-led House of Representatives, where lawmakers say the push is a politically motivated attempt to undermine the legitimacy of a court with a conservative majority.

What are the ethical allegations facing Supreme Court justices?

Alito is facing scrutiny after The New York Times reported In May 2024, he flew an inverted flag outside his Virginia home following the 2020 election, a symbol associated with the “Stop the Steal” movement, which aimed to challenge the legitimacy of President Joe Biden’s victory over Trump. Alito said the flag was raised briefly by his wife amid a dispute with neighborsand that he had no part in it. To New York Times then reported that the Alitos flew an “Appeal to Heaven” flag outside their New Jersey vacation home in 2023, another symbol associated with January 6, support for Donald Trump and religious conservatism. “My wife likes to fly flags,” Alito wrote in his letter to lawmakers. “It is not me.” The incidents have raised concerns about Alito hearing cases related to the Jan. 6 riot and Trump’s role in it.

Alito faced criticism last year after ProPublica reported in June 2023, who went on a luxury fishing trip with billionaire Paul Singer, whose hedge fund has had repeated involvement in cases before the court, without disclosing it. Alito defended his actions on Wall Street Daily opinion article published before the ProPublica report, claiming ignorance of Singer’s ties to lawsuits and stating that he did not feel obligated to publicize the trip. Alito was also criticized after his involvement in the case Burwell v. Hobby Lobby caught attention after The New York Times reported in November 2022, that a conservative activist learned of the 2014 decision after a dinner with donors and Alito, a revelation that triggered a hearing before the House Judiciary Committee.

Justice Clarence Thomas has been the focus of investigation in recent years for accepting gifts and luxury trips from Republican mega-donor Harlan Crow without disclosing them as required by federal law. Thomas also faced criticism for his wife Ginni Thomas’s right-wing activism and her involvement in efforts to overturn the 2020 election, which raised concerns about potential conflicts of interest as Thomas heard election-related cases. Thomas faced charges related to a substantial loan he received from a wealthy friend, Anthony Welters, which he allegedly never repaid in full, a Senate investigation found. Questions have arisen about the proper reporting of this loan on Thomas’s taxes and financial disclosures. Thomas has not directly commented on the incident, although his lawyer disputed the findings of the Senate investigation, telling the New York Times that the loan was never forgiven.

Other justices, including Sonia Sotomayor and Neil Gorsuch, have also faced scrutiny for various ethical issues. Sotomayor’s staff supposedly pressured public institutions to buy copies of her books during her speeches, although the Supreme Court denied that attendees at events with Sotomayor were required to buy her book. Gorsuch was accused of selling real estate to the head of a law firm with court cases, without naming the buyer on their financial disclosure forms. He did not comment directly on the matter.

Chief Justice John Roberts was investigated in January 2023 due to reports of his wife’s significant earnings from her work as a recruiter, matching lawyers with law firms. Concerns were raised about the potential influence of these income on the decisions of the President of the Supreme Court and the perception of impartiality. “This complaint raises troubling questions that once again demonstrate the need for a binding code of conduct for Supreme Court justices,” Senate Judiciary Committee Chairman Dick Durbin, an Illinois Democrat, said in a statement at the time.