(C) OpenDemocracy This story was originally published by OpenDemocracy and is unaltered. . . . . . . . . . . US Supreme Court’s joke of an ethics code is not reform [1] [] Date: 2024-02 I have often used this column to criticise the Supreme Court of the United States – particularly its right-wing supermajority that was installed by Republicans via unprecedented and fundamentally unfair political manoeuvring. But last week, after years of pressure, the court finally released its first formal code of ethics in its two centuries of existence. In light of this, I (drumroll please)… stand by my previous remarks. Superficial and sloppy PR, which is what this new code amounts to, does nothing to change my opinion that this Supreme Court is fundamentally illegitimate. That’s not only my opinion. Public opinion data shows the Supreme Court’s approval rating hovering at near-historic lows. Only 41% of American adults overall approve of the court’s performance, and only 23% of Democrats. What do you think? Win a £10 book voucher for sharing your views about openDemocracy. Tell us That the court released an ethics code at all, of course, is an acknowledgment by unelected officials serving lifetime appointments – people who are accustomed to being entirely unaccountable and untouchable – that they are facing a legitimacy crisis. But instead of meeting that crisis with appropriate self-reflection and contrition, the court defensively insisted in the code’s first paragraph that its members have long already abided by the norms the code promulgates. This feels more or less like a means of flipping “we the people” the middle finger. The statement, if true, indicates the scandalous behaviour of right-wing justices Samuel Alito and Clarence Thomas, involving the lavish generosity of their billionaire friends, is not a violation of the code. The section of the code most relevant to these scandals reads: A Justice should not allow family, social, political, financial, or other relationships to influence official conduct or judgment. A Justice should neither knowingly lend the prestige of the judicial office to advance the private interests of the Justice or others nor knowingly convey or permit others to convey the impression that they are in a special position to influence the Justice. As many commentators have immediately pointed out, the use of the word “should,” as opposed to “shall,” is meaningless in a legal document of this nature. “Should” suggests the behaviour is optional; “shall” indicates that the behaviour is mandatory. And what do we find throughout the entire 15-page document? Nothing but non-binding “should” after non-binding “should”, including on the matter of recusal from hearing a case in which a justice’s impartiality might be questioned by “an unbiased and reasonable person” with “knowledge of all the relevant circumstances.” As legal affairs commentator Jesse Wegman pointed out in The New York Times, “knowledge of all the relevant circumstances” is difficult to come by without justices publicly disclosing the largesse of their billionaire buddies, which both Thomas and Alito have failed to do in their annual financial disclosures. And even if the word “should” were not legally meaningless, this new Supreme Court ethics code does not come with any sort of enforcement mechanism. The court has not moved to create a new accountability office under its auspices, for example, and in any case, the onus for something like that, or the creation of an inspector general for the judicial branch, falls on Congress, which, because of Republican opposition, has failed to make any progress on judicial reform despite public pressure. The Supreme Court’s release of its meaningless joke of an ethics code seems like an attempt to get ahead of the possibility of meaningful congressional oversight of the court. But once again, it is asking the American public to simply trust that justices will police themselves, although they have proven time and again they are incapable of doing so. This code is not court reform, and, thankfully, the media is not treating it as such. If anything, it seems to me, the court’s attempt at damage control will only deepen its institutional legitimacy crisis. Unfortunately, the only way to create mechanisms to hold the court’s too often inaptly named ‘justices’ accountable for ethical violations is legislative action. I call this situation unfortunate because, as I have belaboured, structural problems (such as the Electoral College, voter suppression, and equal representation in the Senate by state rather than population) with the US government give conservatives disproportionate power. Some of these could be overcome, however, with a less feckless Democratic leadership, should Democrats retain control of the Senate and the presidency and win back control of the House of Representatives in 2024. In that best case scenario, we will need sustained public pressure both on the president to restore fairness by adding seats to the court, and on congressional officials to pass legislation that will force the court’s rogue right-wing supermajority to “maintain and observe high standards of conduct,” in the words of the court’s new ethics code. 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