The Only Court in America Without Enforceable Ethics Rules
Here’s a fact that should shock every American: The Supreme Court’s nine justices are the only federal judicial officers who are not subject to a specific and binding code of ethics.
Every other federal judge in America—from district courts to circuit courts of appeals—faces enforceable ethical rules and potential discipline for violations. All fifty state supreme courts subject their justices to ethics reviews with real consequences.
But the nine most powerful judges in America? They answer to no one.
On November 13, 2023, facing mounting pressure from ethics scandals involving Justices Thomas and Alito, the Supreme Court adopted its first-ever written code of conduct. The justices presented it as a meaningful reform.
It wasn’t. The code has no enforcement mechanism, no independent oversight, and no penalties for violations. It’s advisory, not mandatory. With 53 uses of the word “should” and only 6 of the word “must,” it reads more like a friendly suggestion than binding rules.
As Senator Sheldon Whitehouse stated: “This is a long-overdue step by the justices, but a code of ethics is not binding unless there is a mechanism to investigate possible violations and enforce the rules.”
The Supreme Court needs a truly binding ethics code—one with teeth, independent enforcement, and real consequences. Here’s why.
The Current System: Self-Policing by the Accused
The Supreme Court’s November 2023 code represents the justices policing themselves. There is no mechanism to enforce the code—no arbiter to enforce, apply, or even interpret these rules.
When a justice is accused of an ethical violation—accepting undisclosed gifts, refusing to recuse despite obvious conflicts, participating in cases involving a spouse’s financial interests—who investigates? The justice himself.
Who decides if a violation occurred? The justice himself.
Who imposes penalties? No one.
Law professor Stephen Vladeck captured the absurdity: “The new Supreme Court code’s lack of any apparent enforcement process is ’the elephant in the room.’ Even the most stringent and aggressive ethics rules don’t mean all that much if there’s no mechanism for enforcing them.”
This isn’t accountability. It’s a public relations exercise designed to quiet criticism while changing nothing.
How Lower Federal Courts Handle Ethics
Lower federal judges don’t get to police themselves. They face actual accountability.
The Code of Conduct for United States Judges
Since 1973, judges on the lower federal courts have been subject to ethical canons now known as the Code of Conduct for United States Judges. The code addresses:
- Conflicts of interest
- Outside income and activities
- Political activity
- Recusal requirements
- Ex parte communications
- Public comment on pending cases
The Judicial Conduct and Disability Act
More importantly, violations can trigger discipline under the Judicial Conduct and Disability Act of 1980.
Under this system:
- Anyone can file a complaint alleging a federal judge has committed misconduct
- The chief judge of each circuit conducts initial review of complaints
- Circuit judicial councils investigate and can impose remedies
- The Judicial Conference Committee on Judicial Conduct and Disability provides further review
- Penalties range from private reprimand to recommending impeachment
This creates real accountability. Judges know that misconduct will be investigated by other judges, not by themselves.
But Not for Supreme Court Justices
Here’s the catch: Neither the Code of Conduct for United States Judges nor the Judicial Conduct and Disability Act applies to the Justices of the Supreme Court.
The nine people with the most power in the federal judiciary face less oversight than any other federal judge.
How State Supreme Courts Handle Ethics
The comparison with state courts is even more embarrassing for the U.S. Supreme Court.
All fifty states have enforceable judicial ethics codes—including those that bind their highest courts. By 1980, all 50 states had established commissions with authority to investigate judicial misconduct and impose discipline.
State Enforcement Mechanisms
The typical state system includes:
- Independent commissions that investigate judicial misconduct
- Public complaint processes allowing anyone to file ethics complaints
- Fact-finding procedures with due process protections
- Range of penalties from reprimand to removal
- Transparency about complaints and dispositions
Every state supreme court subjects its judges or justices to ethics reviews—something the U.S. Supreme Court refuses to do.
The Contrast Is Stark
A justice on the California Supreme Court who accepts undisclosed gifts faces investigation and potential discipline.
A justice on the U.S. Supreme Court who accepts $4.75 million in undisclosed gifts? He investigates himself, finds no problem, and continues serving.
The Ethics Scandals That Prove We Need Reform
The Supreme Court’s refusal to adopt enforceable ethics rules isn’t theoretical. We’ve seen the consequences in real scandals with zero accountability.
Justice Clarence Thomas: $4.75 Million in Undisclosed Gifts
As documented elsewhere:
- Thomas accepted over $4.75 million in luxury travel, real estate deals, and other gifts from billionaire Republican donor Harlan Crow
- He failed to disclose these gifts as required by federal law
- He participated in cases involving Crow’s interests without recusing
- He faced no investigation, no sanctions, no consequences
Justice Samuel Alito: Luxury Trips and Insurrection Flags
As documented elsewhere:
- Alito took a $100,000+ luxury fishing trip with billionaire Paul Singer, whose hedge fund had cases before the Court
- He failed to disclose the trip
- He flew insurrection-related flags at his homes, then refused to recuse from January 6 cases
- He faced no investigation, no sanctions, no consequences
The Pattern Is Clear
When justices violate ethical norms:
- ProPublica or another outlet breaks the story
- The justice issues a statement claiming no wrongdoing
- Democrats call for accountability
- Nothing happens
- The justice continues serving
This isn’t how ethics enforcement works anywhere else in American government. It’s how ethics enforcement fails.
What a Binding Ethics Code Would Look Like
Congress has proposed exactly the kind of binding ethics code the Supreme Court needs: the Supreme Court Ethics, Recusal, and Transparency Act (SCERT Act).
Reintroduced in May 2025 by Senator Sheldon Whitehouse and Representative Hank Johnson, the Act includes:
1. Binding Code of Conduct
- The Supreme Court must adopt a code of conduct within 180 days
- The code must be as restrictive as ethics rules for Congress
- Justices cannot accept gifts beyond what members of Congress can accept
2. Independent Investigation and Enforcement
- Public complaint process allowing anyone to submit ethics complaints
- Random panel of chief judges from lower courts investigates complaints
- Written findings and recommendations made public
- Referral to House Judiciary Committee for potential impeachment proceedings
This creates real accountability through independent oversight, not self-policing.
3. Mandatory Recusal Standards
- Justices must recuse when parties lobbied for their confirmation
- Justices must recuse when parties spent money campaigning for their confirmation
- Panel of randomly selected judges or other justices reviews recusal requests
- Written explanations required for all recusal decisions
This prevents justices from deciding their own conflicts of interest.
4. Amicus Brief Transparency
- Parties filing friend-of-the-court briefs must disclose who prepared them
- Must disclose financial contributors to those organizations
- Prevents dark money interests from secretly influencing cases
5. Ongoing Monitoring
- Federal Judicial Center studies and reports to Congress every two years on compliance
- Creates accountability through transparency
The Constitutional Arguments Against Binding Ethics Codes (And Why They Fail)
Supreme Court justices and their defenders claim Congress cannot impose ethics rules on the Court. Their arguments don’t hold up.
Argument 1: Separation of Powers
The Claim: Forcing the Supreme Court to follow ethics rules violates separation of powers by allowing Congress to control the judiciary.
The Reality: Congress already regulates the Supreme Court in numerous ways:
- Sets the number of justices
- Determines jurisdiction
- Establishes recusal statutes
- Mandates financial disclosure requirements
- Controls the Court’s budget
If Congress can do all that, it can certainly require ethical conduct.
Argument 2: Article III Protections
The Claim: Article III protects judicial independence by giving judges life tenure and salary protection, preventing interference.
The Reality: Requiring judges to follow ethics rules doesn’t interfere with their judicial decision-making or remove them from office. It sets conduct standards—just like every other judge in America already follows.
Argument 3: Only Impeachment Can Discipline Justices
The Claim: The Constitution provides only one remedy for judicial misconduct: impeachment.
The Reality: Impeachment is for “high crimes and misdemeanors,” not all ethical violations. Ethics codes provide remedies short of removal—exactly like lower federal courts already have.
The Bottom Line
Legal scholars across the political spectrum agree that Congress has constitutional authority to impose ethics requirements on the Supreme Court. The justices’ resistance is about protecting their privilege, not the Constitution.
Why Self-Regulation Has Failed
The Supreme Court’s November 2023 code proves that voluntary, self-enforced ethics rules don’t work.
The Code Excuses Past Violations
The code’s commentary explicitly excuses the very conduct that triggered its creation. On gifts and disclosure, the code says justices “may accept personal hospitality” without disclosure—the exact loophole Thomas used to justify hiding millions in luxury travel.
As critics immediately noted, the Court designed the code to retroactively justify the justices’ problematic conduct rather than prevent future violations.
No Mechanism for Complaints
The code provides no process for:
- Filing complaints about ethical violations
- Investigating allegations
- Making determinations about whether violations occurred
- Imposing any consequences
Without these basic elements, the code is performative, not functional.
Justices Decide Their Own Conflicts
Under the current system, when a justice faces a recusal request, that justice alone decides whether to step aside. There’s no review, no appeal, no accountability.
Justice Alito refused to recuse from January 6 cases despite flying insurrection flags. Justice Thomas refused to recuse despite his wife’s involvement in efforts to overturn the 2020 election. Both simply asserted their decisions were correct—and that was that.
What Happens Without Enforceable Ethics Rules
The consequences of the Supreme Court’s accountability-free system extend far beyond individual scandals.
Public Trust Collapses
Supreme Court approval has plummeted to historic lows. When justices openly violate ethical norms with no consequences, Americans stop believing the Court is impartial.
Dark Money Corruption Flourishes
Without disclosure requirements for amicus briefs and with justices accepting gifts from billionaires with interests before the Court, we can’t know the extent to which money influences Supreme Court decisions.
Justices Become Politicians
When justices give speeches at Federalist Society events, attend partisan political gatherings, and make public statements about political issues—all without ethical constraints—they become indistinguishable from politicians.
The Court Loses Legitimacy
A court where justices follow different rules than every other judge in America, where ethical violations go unpunished, and where accountability is a joke isn’t a court of law—it’s an oligarchy.
Conclusion: Accountability Is Not Optional
The Supreme Court’s current approach to ethics—voluntary guidelines, self-policing, zero enforcement—has failed spectacularly. Justice Thomas’s $4.75 million in undisclosed gifts and Justice Alito’s refusal to recuse from cases involving insurrection flags prove that justices will not voluntarily follow ethical norms.
Every other federal judge faces enforceable ethics rules. Every state supreme court justice faces enforceable ethics rules. The nine most powerful judges in America should not be exempt.
The Supreme Court Ethics, Recusal, and Transparency Act provides a path forward: binding rules, independent investigation, mandatory recusal standards, and real consequences for violations.
The justices will claim Congress lacks authority to impose ethics requirements. They’re wrong—and even if they weren’t, the Constitution should not protect corruption.
The choice is clear: either we establish enforceable ethics rules for Supreme Court justices, or we accept that the Court operates above the law.
One option preserves judicial independence while ensuring accountability. The other enables corruption, erodes public trust, and confirms that the Supreme Court has become precisely what the Founders feared: an unaccountable body wielding unchecked power.
We need a binding ethics code. We needed it decades ago. And every day without one is another day the Supreme Court proves it cannot be trusted to police itself.