The Illinois Supreme Court has laid out a common-sense ethics policy for judges: It’s not enough for judges to avoid impropriety. They must also avoid even the appearance of impropriety.
That policy seems straightforward, but somehow the U.S. Supreme Court can’t figure it out. The nine justices in Washington ought to take a look at how Illinois does things.
For years, the U.S. Supreme Court justices have been saying they’re hunting for a suitable ethics code of conduct that would cover them, but they just can’t seem to come up with one. It shouldn’t be that hard. The Washington Post reported this past week the court failed to reach consensus on an ethics code after at least four years of discussions.
But the court needs a widely trusted and binding ethics code if it is to patch up its reputation. As it is, the court has been coming in for a lot of criticism.
When Donald Trump asked the Supreme Court to prevent some documents from being turned over to the House Select Committee on January 6th as the panel investigated the insurrection at the U.S. Capitol, Justice Clarence Thomas was the only justice to side with Trump. Ethicists argued Thomas should have recused himself because his wife, Virginia “Ginni” Thomas, had worked to overturn President Joe Biden’s victory.
This week, The New York Times reported Chief Justice John Roberts’ wife — after earlier leaving her law firm to avoid a conflict of interest — has been paid millions of dollars in commissions for recruiting lawyers to law firms, some of which have business before the Supreme Court.
Last year, the former leader of a religious organization said he recruited and coached wealthy volunteers to wine and dine conservative Supreme Court justices while promoting conservative positions on various issues.
And going back a couple of decades, then-Justice Antonin Scalia took hunting trips with people who had interests in cases before the high court, including former Vice President Dick Cheney.
And yet, there is no way to file ethics complaints about justices that they must respond to.
No wonder doubts have arisen in the public’s mind about the fairness of the court, especially after the overturning last year of the then-49-year-old Roe v. Wade ruling, which enshrined the right to choose to have an abortion. The Roe vote and the overturning of other long-established laws has led some Americans to believe that the court’s decisions these days are based on which justices sit on the bench at a particular time, not on the law.
It’s no surprise polls show trust in the Supreme Court is at an all-time low.
This past week, the American Bar Association’s House of Delegates urged the high court to adopt a binding code of ethics comparable to the rules in many states. Advocates of the change said: “The absence of a clearly articulated, binding code of ethics for members of the highest court in the country imperils the legitimacy of the court as well as the judicial system.”
Meanwhile, on Thursday, U.S. Sen. Dick Durbin, D-Ill., chair of the Senate Judiciary Committee, joined colleagues in re-introducing the Supreme Court Ethics Act. Among other measures, the legislation would require the appointment of an ethics investigations counsel and require justices to publicly disclose decisions about recusals.
“The Supreme Court of the United States ought to be the embodiment of objectivity,” Durbin said in a statement. “As reports of ethically questionable behavior by Justices continue to surface, Congress must close the inexcusable ‘Supreme Court loophole’ in federal judicial ethics rules.”
In Illinois, not every judge, of course, has abided by the Illinois Supreme Court’s ethics rule.
In 1996, then-Chief Justice James D. Heiple, for example, reportedly drove off after police pulled him over in downstate Pekin and refused to stop even with a police car following him with lights flashing and a siren sounding. That certainly qualified as an appearance of impropriety.
But at least Illinois, which updated its rules on Jan. 1 to cover judges’ use of social media, has a policy in place. The U.S. Supreme Court ought to follow suit.
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