Supreme Court Adopts Broken Code

Oh, joy: the U.S. Supreme Court has adopted its first-ever Code of Conduct. Now we ethics and compliance professionals can pick the document apart, dissecting all the ways that this code would come up short in the corporate world.

Like, you want to give the court applause for adopting a Code of Conduct, because the institution sorely needed one — but wow, what the nine justices actually adopted is only a faint echo of what a Code of Conduct should be. It’s more like a florid set of guidelines the justices should try to keep in mind while exerting moral and legal authority over 330 million Americans. If compliance officers proposed something similar in your own organizations, you’d be laughed out of either the boardroom or your meeting with Justice Department investigators, whichever came first. 

Let’s first review the series of unfortunate events that brought us to this moment, which can be summed up in four words: Clarence Thomas and Samuel Alito. They are the two Supreme Court justices who had their hands caught in the favoritism cookie jar, with one example after another of them accepting lavish travel, gifts, or entertainment from billionaires and other well-funded political interests that regularly pushed litigation issues in front of the court. 

Thomas, for example, accepted undisclosed luxury travel from billionaire, real estate magnate, and Republican donor Harlan Crow for years, as well as from numerous other rich men with much to gain from how the court might rule on various legal issues. Alito accepted a luxe fishing vacation to Alaska from hedge fund billionaire Paul Singer, who then had numerous cases in front of the court. 

Those examples only scratch the surface, but you get the idea: the behavior of these two men reeks of privilege and conflict, certainly in appearance if not in fact as well. For many months they seemed not to care about that appearance one bit; Alito in particular wrote an essay telling critics in Congress to buzz off, the court can do whatever it wants. 

Now, however, the court has surrendered to common sense and propriety, and adopted a Code of Conduct. 

So What’s Wrong With This Code?

Lots of things, really. The more you consider this document as a response to the justices’ actions and the court’s tarnished public reputation, the more underwhelmed you are. I see two primary flaws.

CodeFirst, the code lacks any enforcement mechanism. It never explains how someone could report a violation, or to whom. Even if someone did report a violation — and the Code does say, “A Justice should not retaliate against those who report misconduct,” so there’s at least some awareness that reporting violations is a thing — the Code doesn’t specify who would then evaluate that allegation, or how. As far as anyone can tell, each justices is responsible for enforcing his or her own adherence to the Code. 

What good is that? A Code of Conduct needs to include an independent enforcement mechanism. People need to know not just that they’re accountable for their actions, but also that they can be called to account for their actions, even against their will. Otherwise the code is just a piece of paper urging you to be good. You can get that from your mom when she packs your lunch for school.

Second, this code runs heavy on what justices “should” do, and light on what they “must” do. That’s not how a Code of Conduct is supposed to work. A code demands certain standards of behavior and threatens consequences if you fail to meet those standards. 

For example, the Code of Conduct at Pepsico uses the word “must” 53 times across 42 pages. Boeing’s Code of Conduct, famed for articulating nine ethical standards on one page, uses the phrase “I will” 11 times. Pick pretty much any other Code of Conduct in the corporate world, and you’ll see the same concept over and over again, whether that code is one page or as long as the phone book: it requires people to behave in certain ways. There’s no “should” involved.

Don’t Forget the History Lesson

We’d also do well to remember why the Supreme Court adopted this code in the first place: because the ethically challenged actions of Thomas and Alito forced the court’s hand.

Again, that’s not how a Code of Conduct is supposed to work. In the ideal world, an organization adopts a Code of Conduct because it wants to codify its ethical values and expectations for good conduct. When you undertake that exercise in response to outside pressure — which obviously is the case here — your incentive is to get any cheap facsimile out the door simply to show that you’ve done something, no matter how low-quality the document is. Which is exactly the result we have here. 

I appreciate the difficult position of Chief Justice John Roberts, trying to corral all nine justices to sign this code. He can’t fire them for refusing to sign, which is not the case in the corporate world; you either agree to the Code of Conduct promulgated by senior management and the board, or you get out. I’d bet my mortgage payment that if Roberts did draft a Code of Conduct that truly held justices to account for their misconduct, Thomas and Alito would refuse to sign it. 

Well, isn’t that worth knowing? Shouldn’t an organization and its stakeholders — which in this case is the American public — want to know which employees won’t abide by its ethical demands? Shouldn’t your Code of Conduct force those recalcitrants to stick out like a sore thumb? 

Roberts was just looking for a Code that could please all nine justices. What he delivered was something that shouldn’t please anyone else. 

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