Roberts sidesteps Supreme Court’s ethics controversies in yearly report; The Washington Post, December 31, 2023

 Ann E. Marimow, The Washington Post; Roberts sidesteps Supreme Court’s ethics controversies in yearly report

"Roberts, a history buff, also expounded on the potential for artificial intelligence to both enhance and detract from the work of judges, lawyers and litigants. For those who cannot afford a lawyer, he noted, AI could increase access to justice.

“AI obviously has great potential to dramatically increase access to key information for lawyers and non-lawyers alike. But just as it risks invading privacy interests and dehumanizing the law,” Roberts wrote, “machines cannot fully replace key actors in court.”...

Roberts also did not mention in his 13-page report the court’s adoption for the first time of a formal code of conduct, announced in November, specific to the nine justices and intended to promote “integrity and impartiality.” For years, the justices said they voluntarily complied with the same ethical guidelines that apply to other federal judges and resisted efforts by Congress to impose a policy on the high court...

The policy was praised by some as a positive initial step, but criticized by legal ethics experts for giving the justices too much discretion over recusal decisions and for not including a process for holding the justices accountable if they violate their own rules."

New Yorker Article Seems to Misdescribe S. Ct.'s Decision on School Library Book Removal; Reason, December 23, 2023

EUGENE VOLOKH , Reason; New Yorker Article Seems to Misdescribe S. Ct.'s Decision on School Library Book Removal

"The article claims that a prohibition on viewpoint-based removals of school library books is "settled law" announced by a "majority opinion." But that's not so...

The matter, then, is not clear. Lower courts may indeed themselves decide that viewpoint-based removals of books from school libraries violate the First Amendment, and they may find Justice Brennan's opinion to be persuasive. And schools may reasonably worry that this might happen, and might conclude that it's better to avoid that litigation. But courts and schools may instead conclude otherwise, and be more persuaded by Chief Justice Burger's dissent.

My own view is more in line with the dissent: I think a public school is entitled to decide which viewpoints to promote through its own library; school authorities can decide that their library will be a place where they provide books they recommend as particularly interesting/useful/enlightening/etc. The process of selecting library books is part of the government's own judgment about what views it wishes to promote; and the ability to reconsider selection decisions (including in response to pressure from the public, which is to say from the ultimate governors of the public schools) should go with the ability to make those decisions in the first place. To be sure, some such decisions may be foolish or narrow-minded, but they're not unconstitutional."

The Supreme Court’s Self-Excusing Ethics Code; The New Yorker, November 21, 2023

Jeannie Suk Gersen , The New Yorker; The Supreme Court’s Self-Excusing Ethics Code

"Last week, the Supreme Court issued a first-ever code of conduct for Justices. It is not a set of rules designed to redress past ethical breaches and prevent future ones but rather a defense brief arguing that there have been no ethical breaches to redress and prevent."

STATEMENT OF THE COURT: REGARDING THE CODE OF CONDUCT; SUPREME COURT OF THE UNITED STATES, November 13, 2023

SUPREME COURT OF THE UNITED STATES; STATEMENT OF THE COURT REGARDING THE CODE OF CONDUCT

"The undersigned Justices are promulgating this Code of Conduct to set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the Members of the Court. For the most part these rules and principles are not new: The Court has long had the equivalent of common law ethics rules, that is, a body of rules derived from a variety of sources, including statutory provisions, the code that applies to other members of the federal judiciary, ethics advisory opinions issued by the Judicial Conference Committee on Codes of Conduct, and historic practice. The absence of a Code, however, has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules. To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct."

Justices Will Probe Trademarks’ Nature in ‘Trump Too Small’ Case; Bloomberg Law, October 30, 2023

Kyle Jahner, Bloomberg Law; Justices Will Probe Trademarks’ Nature in ‘Trump Too Small’ Case

"The fight over ‘Trump Too Small’ is the latest in a series of cases the court has faced in recent years raising First Amendment questions over trademark registrations. Although the justices skipped deciding the broader constitutional questions when they struck down different statutory registration bans in 2017 and 2019, this time the nature of the government’s argument may force the justices to now draw a line in the sand, he said."

New Clarence Thomas ethics questions about forgiveness on luxury RV loan; NPR, October 25, 2023

 Nina Totenberg, NPR; New Clarence Thomas ethics questions about forgiveness on luxury RV loan

"The drip, drip, drip of new ethics questions about Supreme Court Justice Clarence Thomas's ethics continued Wednesday. Senate Finance Committee Chairman Ron Wyden, D-Ore., disclosed that documents turned over to the committee indicate that Thomas benefitted by having some or all of a $267,000 loan forgiven in order to purchase a luxury RV."

Justice Barrett Calls for Supreme Court to Adopt an Ethics Code; The New York Times, October 16, 2023

Abbie VanSickle, The New York Times; Justice Barrett Calls for Supreme Court to Adopt an Ethics Code

"Justice Amy Coney Barrett said on Monday that she favored an ethics code for the Supreme Court, joining the growing chorus of justices who have publicly backed adopting such rules.

“It would be a good idea for us to do it, particularly so that we can communicate to the public exactly what it is that we are doing in a clearer way,” she said during a wide-ranging conversation at the University of Minnesota Law School with Robert Stein, a longtime law professor and the former chief operating officer of the American Bar Association."

Where the Supreme Court stands on banning books; The Conversation, October 2, 2023

Suzanne Eckes, Susan S. Engeleiter Professor of Education Law, Policy and Practice, University of Wisconsin-Madison, The Conversation; ; Where the Supreme Court stands on banning books

"My analysis of that 1982 case, Board of Education, Island Trees Union Free School District v. Pico, finds useful information that can help put these book ban lawsuits in context."

Clarence Thomas' recusal on 'frivolous' January 6 appeal is a 'low-stakes' opportunity for him to fight ethics allegations, Supreme Court expert says; Insider, October 2, 2023

Erin Snodgrass , Insider ; Clarence Thomas' recusal on 'frivolous' January 6 appeal is a 'low-stakes' opportunity for him to fight ethics allegations, Supreme Court expert says

"His apparent about-face on Monday suggests the increased scrutiny over his ethical conduct may be having a tangible effect on his judicial career, Scott Lemieux, a professor of political science at the University of Washington and an expert in constitutional law, told Insider.

"The fact that he didn't recuse himself in previous cases involving the 2020 election makes it hard to imagine these recent stories aren't playing a role here," he told Insider...

Regardless of his reasons, Thomas ultimately did the right thing in recusing himself from the Eastman appeal, Lemieux said.

"The justices have to be convinced if they do unethical things, it will hurt the legitimacy of the Supreme Court," he said."

Faith in the Supreme Court is down. Voters now say they want changes.; Politico, September 30, 2023

 STEVEN SHEPARD, Politico; Faith in the Supreme Court is down. Voters now say they want changes.

"In addition to the 75 percent of voters — a bipartisan consensus of 81 percent of Democrats, 72 percent of Republicans and 69 percent of independents — who support a binding ethics code, roughly two-thirds of voters support term limits for the justices (68 percent). A similar percentage (67 percent) say the court should televise oral arguments, while 66 percent believe there should be an age limit for the justices. A smaller majority, 60 percent, think there should be an equal number of Democrats, Republicans and independents on the high court."

What we’re watching at the start of new Supreme Court term; The Washington Post, October 2, 2023

Tobi Raji

, 

Theodoric Meyer

 and 

Leigh Ann Caldwell

, The Washington Post; What we’re watching at the start of new Supreme Court term

"2. Lindke v. Freed, O’Connor-Ratcliff v. Garnier (Oct. 31)

There are several cases on the court’s docket this term that will tackle the future of online speech. The first two — Lindke v. Freed and O’Connor-Ratcliff v. Garnier — will seek to answer whether the First Amendment prohibits public officials from blocking constituents.

• (“Two years ago, the justices dismissed a similar challenge to Trump’s efforts to block critics on Twitter, after he lost reelection and his Twitter account was suspended,” Robertwrites.)

The high court will also debate the constitutionality of laws passed in Texas and Florida that regulate the tech industry’s content-moderation policies. They are Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton. Conservatives argue that social media platforms are censoring their viewpoints, while the companies argue that the new laws violate their First Amendment right to choose what to publish on their platforms."

For Supreme Court, ethics have become the elephant in the courtroom; The Washington Post, October 1, 2023

Robert Barnes

 and 

Ann E. Marimow

, The Washington Post; For Supreme Court, ethics have become the elephant in the courtroom

"Some of the issues and political stalemates that haunt the Supreme Court are returning for the term that begins Monday, accompanied by another concern: how to convince the public that the justices take seriously their ethical obligations."

Justice Kagan Calls for the Supreme Court to Adopt an Ethics Code; The New York Times, September 22, 2023

Adam Liptak, The New York Times;  Justice Kagan Calls for the Supreme Court to Adopt an Ethics Code

"Justice Elena Kagan said on Friday that the Supreme Court should adopt a code of ethics, saying that “it would be a good thing for the court to do that.”

Her comment, part of a wide-ranging live-streamed public interview at Notre Dame Law School, came on the day ProPublica reported that Justice Clarence Thomas had twice attended an annual event for donors organized by the conservative political network established by the billionaire industrialists Charles and David Koch.

Justice Kagan did not discuss the report, but she said that an ethics code “would, I think, go far in persuading other people that we were adhering to the highest standards of conduct.” She added that “I hope we can make progress.”"

Clarence Thomas Secretly Participated in Koch Network Donor Events; ProPublica, September 22, 2023

 Joshua Kaplan, Justin Elliott  Alex Mierjeski, ProPublica ; Clarence Thomas Secretly Participated in Koch Network Donor Events

"The code of conduct for the federal judiciary lays out rules designed to preserve judges’ impartiality and independence, which it calls “indispensable to justice in our society.” The code specifically prohibits both political activity and participation in fundraising. Judges are advised, for instance, not to “associate themselves” with any group “publicly identified with controversial legal, social, or political positions.”

But the code of conduct only applies to the lower courts. At the Supreme Court, justices decide what’s appropriate for themselves.

“I can’t imagine — it takes my breath away, frankly — that he would go to a Koch network event for donors,” said John E. Jones III, a retired federal judge appointed by President George W. Bush. Jones said that if he had gone to a Koch summit as a district court judge, “I’d have gotten a letter that would’ve commenced a disciplinary proceeding.”

“What you’re seeing is a slow creep toward unethical behavior. Do it if you can get away with it,” Jones said."

The Supreme Court’s Growing Ethics Splits; The New Republic, September 12, 2023

Matt Ford, The New Republic; The Supreme Court’s Growing Ethics Splits

"A notable split is developing among the Supreme Court justices over the prospect of ethics reform, with two of the court’s nine members openly hostile to the reporting on ethics concerns...

In theory, eight of the justices could collectively decide to strip another justice of their vote in the most extreme circumstances. The Supreme Court took that extraordinary step just once in its history, when the other eight justices secretly agreed in 1975 to punt any case in which Justice William O. Douglas cast a deciding vote to the following term instead of handing down a ruling. Douglas, who was 76 years old at the time, was partially paralyzed by a series of strokes and refused to retire despite—or perhaps because of—his deteriorating mental condition, forcing the court’s hand. (He eventually stepped down that November.) Beyond that exceptional collective step, however, the individual justices have no ability to substantively check one another...

To that end, it’s not clear yet whether these public remarks fully reflect the stances that the justices are taking when talking amongst themselves. (As you may have gathered from a head count of the justices mentioned, not all of them have spoken publicly about it yet.) If this is the way the winds are blowing, however, then Thomas and Alito might find themselves in an uncomfortable position. It would be awkward, to say the least, for the two justices who’ve received the most scrutiny to be the ones most resistant to reform."

Justice Kavanaugh says ethics changes may be coming to Supreme Court; The Washington Post, September 7, 2023

Robert Barnes, The Washington Post ; Justice Kavanaugh says ethics changes may be coming to Supreme Court

"Justice Brett M. Kavanaugh said Thursday that he is “hopeful” the Supreme Court soon will take specific steps to deal with ethics issues at the court and boost public confidence in the institution.

Kavanaugh made the comments while speaking at a conference of judges and lawyers, after he was asked by Judge Stephanie Dawkins Davis of the U.S. Court of Appeals for the 6th Circuit about “perceived ethics issues” at the high court."

As Clarence Thomas faces record unpopularity, Americans want an ethics code for the Supreme Court; CNN, September 3, 2023

 Harry Enten, CNN; As Clarence Thomas faces record unpopularity, Americans want an ethics code for the Supreme Court

"But there is no significant partisan gap when it comes to whether there should be a formal ethics code for the high court justices.

A UMass Amherst poll conducted a few months ago (after Thomas’ trips financed by Crow first came to light) asked whether the Supreme Court should have a formal code of ethics like other federal courts.

About 90% of Americans said it should. Only about 10% said it should not...

In fact, north of 80% of every subgroup polled in the UMass survey said that the Supreme Court should have a formal ethics code. This includes 96% of Democrats and 84% of Republicans."

Clarence Thomas Acknowledges Undisclosed Real Estate Deal With Harlan Crow and Discloses Private Jet Flights; ProPublica, August 31, 2023

 Joshua Kaplan, Justin Elliott and Alex Mierjeski, ProPublica; Clarence Thomas Acknowledges Undisclosed Real Estate Deal With Harlan Crow and Discloses Private Jet Flights

"Supreme Court Justice Clarence Thomas for the first time acknowledged that he should have reported selling real estate to billionaire political donor Harlan Crow in 2014, a transaction revealed by ProPublica earlier this year. Writing in his annual financial disclosure form, Thomas said that he “inadvertently failed to realize” that the deal needed to be publicly disclosed...

In a statement Thursday, an attorney for Thomas, Elliot Berke, said that “after reviewing Justice Thomas’s records, I am confident there has been no willful ethics transgression, and any prior reporting errors were strictly inadvertent.”"

Two Justices Clash on Congress’s Power Over Supreme Court Ethics; The New York Times, August 26, 2023

Adam Liptak , The New York Times; Two Justices Clash on Congress’s Power Over Supreme Court Ethics

"Congress has enacted laws that apply to the justices, including ones on financial disclosures and recusal. In a way, the most telling ethics legislation came from the first Congress, in 1789, requiring all federal judges, including Supreme Court justices, to take an oath promising “that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me.""

The Supreme Court’s Ethics Problem Has a Pretty Easy Solution; Bloomberg Law, August 25, 2023

 Michael J. Broyde, Bloomberg Law; The Supreme Court’s Ethics Problem Has a Pretty Easy Solution

"Much has been written on the ethical problems facing the Supreme Court. Writers fixate mostly on the lack of an ethics code and the conduct of specific justices.

Yet in this discussion, many have missed something key: These aren’t the real issues. In fact, US law already has the basic outlines of an ethics code. Federal law states directly that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

The statute, if applied uniformly and properly, solves nearly all the issues that have recently plagued the high court’s image by making the rules themselves clear.

Not only does the statute explicitly cover the justices, but every sitting justice also has accepted that the statute governs them, as noted in many cases and in the recent letter about ethics signed by the nine.

The real issue when it comes to the court’s ethical problems concerns this statute’s implementation."