Editorial: Supreme Court’s new ethics code falls short in solving its ethics problem

The U.S. Supreme Court justices have adopted a code of conduct designed to assure Americans that they will behave ethically. Now, after embarrassing news reports about questionable conduct by some justices, it finally has brought forth a document designed to dispel “the misunderstanding that the justices of this court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.” The new code — which the justices call “a codification of principles that we have long regarded as governing our conduct” — is endorsed by Justices Clarence Thomas and Samuel A. Alito Jr., who were the subject of news reports describing their undisclosed luxury vacations paid for by wealthy individuals. Amanda Frost, a judicial ethics expert at the University of Virginia Law School, told The Times that it was “a small but significant step in the right direction.” But Frost also noted that there was “no acknowledgment of past transgressions, no enforcement mechanism and no guarantee of increased transparency or accountability.” The lack of enforcement is particularly a problem when it comes to requiring justices to refrain from participating in cases because their “impartiality might reasonably be questioned” — so-called recusal. Recusal is admittedly a more complicated matter for Supreme Court justices than for lower-court judges, because a justice who withdraws from a case cannot be replaced the way a lower-court judge can be. In a recent op-ed in The Times, Erwin Chemerinsky, the dean of the UC Berkeley School of Law, cited two proposals for changes in the recusal process: the appointment by the chief justice of retired appeals court judges to decide recusal questions and, alternatively, a procedure in which a justice’s eight colleagues would decide whether recusal was necessary.