On Monday, the justices of the Supreme Court issued an extremely confusing statement laying forth the court’s brand-new ethics code for the justices themselves. These justices would like, through the announcement, to reassure us there is nothing actually “new” about the new code: “For the most part these rules and principles are not new,” the justices write. “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.” So what is “new,” then, is that the old rules are now binding on the justices?

No! Because of course the new/old rules are not precisely binding on the justices. That’s because the old rules, like the new ones, lack any sort of enforcement mechanism. So if the old rules were advisory principles, to which the old justices could look for guidance in deciding whether or not to adhere to them, so too the new rules, which are binding, will mainly serve as guidance to which the justices may newly look for guidance. Or, as the Associated Press plainly put it: “The code leaves compliance to the justices themselves and does not create any other means of enforcement.”

The most interesting question answered by the promulgation of the new/old rules, therefore, is who it was that was confused about the old rules to such an extent that they needed to be laid down. And as the court notes in its statement regarding the code of conduct:

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.

In other words, it is not the justices who have misunderstood the various sources, canons, common law provisions, etc. when they failed to disclose gifts from donors with cases before the court, or when they attended Koch events that........

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