Stefani
Reynolds/Bloomberg)
Only
the
Supreme
Court
could
announce
a
bare
minimum
ethical
guardrail
that
lower
courts
have
used
since
the
George
W.
Bush
administration
and
act
like
it’s
a
bold
blow
against
the
appearance
of
impropriety.
The
Supreme
Court
announced
Tuesday
that
it
will
now
employ
software
to
help
the
justices
identify
when
they
should
probably
recuse
themselves
from
cases.
We
say
“probably,”
because
there’s
still
no
actually
enforceable
ethics
code
binding
Supreme
Court
justices
and
the
Chief
Justice
has
made
very
clear
that
he
will
ignore
any
attempt
to
impose
one.
Instead,
the
Supreme
Court
drafted
a
14-page
pinky
swear
that
they
will
follow
some
of
the
same
rules
that
bind
lower
court
judges.
According
to
this
toothless
document,
the
justices
aren’t
supposed
to
hear
matters
where
they
have
direct
financial
stakes
in
the
parties.
Thus,
this
new
software
package
and
a
tweak
to
the
filing
rules
to
require
parties
include
their
stock
ticker
symbols.
To
be
clear,
lower
court
judges
have
been
using
conflict-checking
software
since
2007.
The
Supreme
Court
first
hinted
that
it
might
start
using
conflict-checking
software
in
2023.
After
that,
the
Court
went
silent
and
just
continued
running
its
recusal
process
with
all
the
organization
and
transparency
of
the
worst
owner
in
your
fantasy
football
league
on
draft
day.
Eight
hundred
and
twenty-seven
days
later:
mission
accomplished!
Gabe
Roth
of
Fix
the
Court
put
a
fine
point
on
the
situation:
Per
their
most
recent
disclosures,
only
two
justices,
Chief
Justice
Roberts
and
Justice
Alito,
own
individual
stocks,
with
the
former
holding
shares
in
two
companies
and
the
latter
holding
shares
in
more
than
two
dozen.
So
although
the
new
rule
is
a
net
positive
since
it
comes
in
service
of
the
full
Court’s
adoption
of
conflict-check
software,
it’s
not
a
major
improvement,
and
it
should
not
have
taken
827
days
post-Code
to
implement.
That’s
especially
true
since
lower
court
judges
have
been
required
to
use
software-based
conflict
screening
for
20
years,
and
several
justices
have
been
rumored
to
continue
to
use
it
after
they
were
elevated.
Justice
Alito’s
stock
portfolio
has
become
a
recurring
subplot
in
the
Court’s
ongoing
ethics
drama.
Just
last
month,
Alito
recused
himself
—
right
before
oral
arguments
—
from
the
high-profile
Chevron
USA
v.
Plaquemines
Parish
case
because
of
his
holdings
in
ConocoPhillips,
whose
subsidiary
Burlington
Resources
remained
a
party
in
the
lower
court
proceedings.
Alito
holds
stock
in
more
than
two
dozen
companies
and
accounts
for
roughly
a
third
of
all
recusals
at
the
Court.
Chief
Justice
Roberts
holds
stock
in
two
companies.
Meanwhile,
the
other
seven
justices
have
figured
out
how
to
manage
their
finances
without
being
ethical
drags
upon
the
Court.
The
Supreme
Court
took
over
two
years
to
institute
a
new
software
solution
to
fix
a
problem
that
exists
solely
because
these
two
refuse
to
divest
from
the
market
as
a
small
price
to
pay
for
being
the
nation’s
SuperLegislature.
If
the
justices
wanted
to
institute
a
more
effective
change
related
to
their
ethics
and
their
investments,
they’d
agree
as
a
Court
not
to
hold
any
stocks
during
their
tenures,
since
all
it
does
is
cause
unnecessary
recusals.
An
investor-justice
could
own
a
blended
fund,
mutual
fund
or
ETF
and
reap
the
same
benefits
with
a
far
reduced
conflict
exposure.
In
fact,
seven
of
the
nine
justices
have
made
this
very
calculation.
When
Pete
Rose
got
banned
from
baseball
for
gambling
on
games,
one
of
the
popular
arguments
people
made
in
his
defense
was
that
he
never
bet
against
his
team.
He
wasn’t
throwing
games
or
anything…
he
was
just
confident
in
himself!
Except
when
he
looked
at
the
other
dugout
and
decided
to
NOT
bet
on
himself,
that
was
a
signal
too.
Note
that
Sam
Alito
owns
ConocoPhillips
and
not
“Happy
Green
Solar
Farms.”
And
while
it’s
not
an
issue
with
the
Court’s
current
6-3
majority,
if
Alito
thought
his
fossil
fuel
holdings
might
jeopardize
a
ruling
in
favor
of
polluters,
he
could
adjust
his
portfolio
accordingly.
The
fact
that
this
is
even
possible
is
that
appearance
of
impropriety.
Speaking
of
gambling,
our
former
Above
the
Law
colleague
Elie
Mystal
of
The
Nation
recently
speculated
that
Alito
plans
to
retire
at
the
end
of
this
Term.
Pointing
to
the
announcement
that
Alito’s
new
book
will
drop
right
before
the
next
Supreme
Court
Term,
Elie
sees
a
clear
signal
that
Alito
is
planning
to
be
on
a
book
tour
the
next
time
the
justices
convene.
Dahlia
Lithwick
and
Mark
Joseph
Stern
echoed
this
prediction
over
at
Slate.
Then
it
became
full-blown
conventional
wisdom
(though
our
other
former
Above
the
Law
colleague
David
Lat
has
a
counterargument).
Over
at
we’re-not-a-gambling-site-except-in-the-way-that-we’re-totally-a-gambling-site
Kalshi,
you
can
trace
Alito’s
literal
stock
rising
off
Elie’s
musings.
Is
Sam
Alito
out
there
spamming
that
“No”
contract
preparing
to
reap
the
benefits
in
an
epic
bid
to
own
the
libs
like
Elie?
Food
for
thought.
Back
to
the
topic
at
hand.
Given
the
unlikelihood
of
a
voluntary
selloff,
Roth
pointed
to
a
legislative
proposal
to
ban
stock
ownership
for
justices
and
lower
court
judges
alike
—
the
latter
having
their
own
well-documented
ethical
issues
with
investments.
House
Republicans
have
already
watered
down
this
proposal
with
loopholes.
Roth
also
flagged
something
that
often
gets
lost
in
the
polite
coverage
of
Supreme
Court
procedural
updates:
Public
service
also
demands
public
input,
and
it’s
a
bit
ridiculous
that
the
Court
can
simply
release
new
rules
without
a
notice-and-comment
period
or
opportunity
for
public
views.
It’s
yet
another
example
of
the
Court
acting
exceptionally
in
all
the
wrong
ways.
In
the
Court’s
defense,
the
majority
seems
hellbent
on
bending
the
rest
of
the
government
toward
their
state
of
exception.
Other
than
the
Federal
Reserve
—
which
the
majority
will
go
to
comical
lengths
to
protect
—
this
Court
seems
perfectly
comfortable
with
a
dementia-addled
president
unilaterally
rewriting
the
rules
and
regulations
governing
every
executive
agency.
Why
not
impose
Supreme
Court
rule
changes
by
imperial
decree?
Anyway…
the
Supreme
Court
has
a
new
ethics
process.
Don’t
get
too
excited.
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter or
Bluesky
if
you’re
interested
in
law,
politics,
and
a
healthy
dose
of
college
sports
news.
Joe
also
serves
as
a
Managing
Director
at
RPN
Executive
Search.