This Article, along with a prior article, The Supreme Court and the Limits of Human Impartiality, publishedin the Hofstra Law Review,initially developed out of written and spoken testimony about Supreme Court ethics, transparency, and disclosure before the Senate Judiciary Subcommittee on Federal Courts, where Senator Sheldon Whitehouse proposed the Supreme Court Ethics, Recusal, and Transparency Act to impose and enforce a code of ethics for the Supreme Court. Ensuring an Impartial Judiciary: Supreme Court Ethics, Recusal, and Transparency Act of 2023: Hearing on S. 359 Before the S. Comm. on Fed. Cts., Oversight, Agency Action, & Fed. Rts. of the Comm. on the Judiciary, 118th Cong. 8–9, 29–46 (2023) (statement of James J. Sample, Professor of Law, Maurice A. Deane School of Law, Hofstra University). This hearing came in the wake of an investigative report by ProPublica that raised concerns about Justice Clarence Thomas’s potential failure to meet financial disclosure requirements after he received trips and other valuable items from Republican billionaire donor Harlan Crow. Joshua Kaplan, Justin Elliott & Alex Mierjeski, Clarence Thomas and the Billionaire, ProPublica (Apr. 7, 2023), https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow [https://perma.cc/6XCB-8D9P]. The ProPublica report triggered a nationwide discussion of Supreme Court ethics, prompting the Court to implement the very first Supreme Court Code of Conduct. Code of Conduct for Justs. of the Sup. Ct. of the U.S. (U.S. 2023). Owing to the timing of the prior Article’s publication, relative to the Supreme Court’s adoption of the inchoate Code of Conduct that serves as the major focal point for this Article, much of the pertinent context as to recusal law and historical practice is pertinent to both papers. This Article seeks to build on the prior one, particularly with an eye towards critiquing the political, judicial, and legal ramifications of the Court’s unfortunately ersatz Code.
