U.S. Senator Ben Cardin

Letters From Ben

July 15, 2023

Ethics Matter

Dear Fellow Marylanders,

Ethics matter. Integrity and trust matter. These ideals are not Democratic or Republican, but nonpartisan values that allow our society to function.

As a United States Senator, a former United States Representative, and past member of the House of Delegates, I have repeatedly taken an oath to support and defend the Constitution of the United States and the laws of our country and state.

Article VI of the Constitution requires “the Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution…”

Federal judges take this oath of office as well, including Supreme Court justices who serve on the highest court in the land.

Congress also requires federal judges to take an additional oath before donning a black robe and taking the bench. Indeed, the first Congress enacted the Judiciary Act of 1789, which provides that “the justices of the Supreme Court, and the district judges, before they proceed to execute the duties of their respective offices” must take a second oath or affirmation.

Today’s judicial oath states:

“I do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me…under the Constitution and laws of the United States. So help me God.”

For me, honoring the oath of office is not simply about following the letter of the law, but going beyond that to avoid even the perception of ethical questions.

So it has been disturbing to read such detailed revelations regarding ethical problems at the Supreme Court, which inexplicably does not have the same enforceable ethics code as lower courts.

Supreme Court justices have lifetime appointments with a guaranteed federal salary. Each of the nine justices on the Court holds enormous power in terms of how to interpret the Constitution, as they seek to uphold their oath and provide equal justice under the law for all Americans. Within our system of checks and balances, they often have the final say.

The Supreme Court of the United States should have a higher bar for ethics than any other court in the nation, not a lesser one.

Americans need to believe and trust that our Court is truly independent and not beholden to special interests, in order for the Court to be seen as legitimate, and to have its decisions followed faithfully by the other branches of government as well as our society at-large.

According to a recent national poll, 82 percent of Americans support an ethics code and limit on gifts for Supreme Court Justices.

The “problems” I mentioned were outlined in a series of deeply researched articles by Pro Publica on the egregious lack of financial disclosures by Justice Clarence Thomas. Pro Publica outlined how for years Justice Thomas accepted and did not disclose gifts from a billionaire with business before the Court, including luxury vacations; tuition for family members; and purchases of family members’ real estate. Justice Samuel Alito has faced similar questions regarding undisclosed luxury vacations. The justices are tone-deaf if they believe that saying lavish undisclosed gifts from “close personal friends” with business before the court are not improper.

And yes, I have seen the reports questioning some activity by more progressive justices. As I said at the start, ethics should not be partisan. Transparency, doing the right thing and avoiding even the perception of undue influence should be a given for every member of the Supreme Court.

It has been disappointing that Chief Justice John Roberts continues to avoid taking any concrete action to stem what only can be described as a legitimacy crisis at the Supreme Court. In light of such inaction, I have joined as an original cosponsor of S. 359, the Supreme Court Ethics, Recusal, and Transparency Act (SCERT). This commonsense legislation would require Supreme Court justices to adopt a code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, improve disclosure and transparency when a justice has a connection to a party or amicus (friend-of-court brief) before the Court, and require justices to explain their recusal decisions to the public.

If enacted, this legislation honors the separation of branches. It does not direct the Supreme Court to invoke specific ethical guidelines, but it does direct them to take action and put in place enforceable ethical guidelines similar to the rest of the government – judicial, executive and legislative branches.  

Supreme Court justices cannot appear to be above the law or have their impartiality questioned due to their failure to follow basic ethics and disclosure rules just like every other federal government employee. Unfortunately, that is where we find ourselves today, and it needs to change.

Following ethics rules and basic disclosure requirements is not discretionary, particularly for public officials, and especially for those holding rare lifetime appointments in our government. All judges need to be free not only of conflicts of interest but also the appearance of the conflict of interest – Supreme Court justices included.

Thank you for your time. Please feel free to reply back to this email with your thoughts on this topic or any other. Every email is read and appreciated.


Ben Cardin