The United States Supreme Court revealed what some justices touted as a landmark new ethics code last year.
But critics noted that the scandal-plagued institution’s new rules lacked any enforcement mechanisms, making them essentially a 14-page long list of suggestions.
A new leak of secret discussions from behind the bench, published in The New York Times Tuesday, reveals which justices fought to keep the code of conduct toothless.
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The Times reported that the court’s nine justices started passing ultra-confidential memos, kept in paper envelopes and off email servers, back and forth at the end of last summer.
Chief Justice John Roberts, previously a defender of the court’s lack of a binding code, was angling for a compromise. A crisis of public confidence—chiefly driven by revelations that Justice Clarence Thomas failed to disclose taking millions in lavish gifts over two decades, including many from Republican megadonor Harlan Crow—had more or less forced his hand.
But, as they traded memos, Justice Neil Gorsuch emerged as a fervent objector to the idea that the code be anything more than voluntary, the Times said.
Thomas and Justice Samuel Alito apparently backed him up, arguing against critics of the court as bad faith actors.
Representing half of the court’s conservative majority, Gorsuch, Thomas and Alito made a compromise among the justices that featured enforcement mechanisms that were virtually impossible.
The court’s three liberal justices—Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson—all advocated for some form of enforcement, the Times reported.
Kagan even proposed an idea where a group of experienced federal judges could act as a sounding board for justices to consult on ethics code issues, making the system non-punitive and instead designed to help them navigate disclosures, the paper said.
At the end of the day, SCOTUS placed no restrictions on taking gifts, accepting travel or on real estate deals, all of which Thomas has come under fire for in recent years.
The justices however gave themselves a broad carve-out for book deals and sales. Justice Sotomayor, who received $3.7 million for her memoir and her children’s books, came under fire for using court staff for her book events after being appointed to the court in 2009. Now, justices have explicit permission to use staff for such endeavors.
The code states that justices should not be “swayed by partisan interests.”
“These new rules are more loophole than law,” wrote Michael Waldman, the president of the Brennan Center for Justice at New York University’s School of Law, after the final document, signed by all nine justices, was released last year.
