Self-regulation doesn’t work — even for Supreme Court justices

After months of public shaming, the Supreme Court has finally issued a code of conduct for itself. Unfortunately, these self-enforced, mostly performative guidelines are unlikely to curtail the justices’ fondness for private jet travel financed by billionaire partisans. 

That’s because the current approach to Supreme Court ethics is based on an archaic notion that distinguished professionals like Supreme Court justices are somehow different from the plebeian working riff-raff. Spoiler alert: they’re not. 

Although legal advocates and medical healers have been around for quite some time, it was not until the 19th century that they began organizing themselves more systematically. Certification and licensure were introduced, along with formal training programs meant to ensure a threshold level of knowledge and skill. The result was the transformation of certain service occupations — particularly those providing advice, like lawyers, doctors and accountants — into skilled “professions.” Here were bona fide authorities generously dispensing their wisdom to the lunkheaded masses.

Economic and status rewards followed. But, more importantly, the wondrous combination of expertise and socially benevolent advice-giving granted these professionals the privilege of self-determination. These experts were so brainy that they could figure out the best rules for themselves. And they were so altruistic (because they were in the helpful-advice business) that they could be trusted to virtuously adhere to these rules.

A quick scan of events in the last month gives us a good view of how this approach has worked out. Sam Bankman-Fried, effective altruist and financial guru, has been convicted of illegally funneling money entrusted to him by his hedge fund’s clients to rescue his faltering crypto exchange. The National Association of Realtors has been found guilty of conspiring to inflate sales commissions, fleecing homeowners who trusted realtors to act in owners’ interests. And we now know that Justice Clarence Thomas accepted exceptionally generous gifts from rich admirer-friends who happen to have an interest in matters that might appear before the Supreme Court.

Of course, the first two examples are legal offenses, and the last is a disclosure oversight that looks really bad. And financial advisors and realtors are not jurists. But each of these occupations is part of a socially sanctioned profession, touting its own self-promulgated code of conduct.

The non-professionalism of so-called professionals and the sham that is professional self-regulation has clearly been exposed.

The fundamental problem with self-regulation is that financial, legal, medical, property and whatnot professionals — like everybody else — don’t have a big incentive to impose strict rules on themselves. And they are not keen to enforce these rules on their fellow professionals. In medicine, chronic violators might occasionally get hauled in front of a (peer-populated) medical board and punished roundly with a particularly intense session of finger-wagging.

Professional codes that govern self-dealing and conflicts of interest are particularly weak. A common and often sole requirement is disclosure, meaning “tell us about anyone you can think of who is giving you money.” Consulting relationships, travel and free dinners must be reported, but also token gifts. The list of reportable categories can be reassuringly comprehensive — but so broad that it is useless.

The problem is that disclosures list potential sources of bias. No one is asserting that all of these ties — or even any of them — are biasing anyone. And here we reach the real bait-and-switch. Since these financial ties only reflect potential biases rather than manifest biases affecting real-time decisions, no one does anything about them.

Congress must step in to do what the Supreme Court has failed to do. Not only should it delineate enforcement mechanisms for violations of the code of conduct, Congress should also ensure that the code is integrated into the Supreme Court’s workflow.

For judges, the meat of their work is the cases over which they preside. Under the existing professionalism construct, judges are assumed to look deeply into their own souls to decide whether to recuse themselves from specific cases. This outmoded model should be abolished. Recusals should be determined by an independent board that reviews disclosures of past and present financial relationships and assesses judges’ suitability to hear each case.

Supreme Court justices are at the apex of the legal profession, but they are not the only ones who can interrogate knotty recusal quandaries. Indeed, former Justice Stephen Breyer noted that when he was on the court, he rang up ethics professors for recusal guidance.

But is congressional action on this matter constitutional? As a non-lawyer, I am hardly one to make this assessment. Still, it seems to me (and some law professors) that if Congress can compel Supreme Court justices to submit financial disclosures, as it did in 1978, then it can add guardrails that are short of constitutionally sanctioned impeachment.

The current dismal state of government and professional ethics is based on the fallacy that professionals — advice-giving technical experts — are some sort of moral nobility. It is long past time to pay heed to the centuries of evidence that professionals, even Supreme Court justices, are regular — and fallible — people, too.

Genevieve Kanter is a professor at the Sol Price School of Public Policy at the University of Southern California.