Amid questions about its legitimacy, the Supreme Court must adopt a code of conduct
The American Bar Association (ABA) has joined the chorus calling for the U.S. Supreme Court to adopt a code of conduct. In a resolution issued earlier this month, the ABA noted that “[E]very judge in every jurisdiction in the United States – city, county, state, tribal, territorial, and federal – is subject to a binding code of ethics that embodies basic judicial ethical,” except the justices of the Supreme Court.
The lack of a code is troubling, the resolution continued, because the absence of “clearly articulated . . . ethics for the justices of the Court imperils the legitimacy of the Court [and] potentially imperils the legitimacy of all American courts and the American judicial system, given the Court’s central role enshrined in our federal republic.” Nonetheless, the ABA resolution is unlikely to make any difference.
Numerous observers, including me (beginning in 2005), have long criticized the Court for its refusal to promulgate binding ethics rules. President Biden’s Commission on the Supreme Court strongly recommended the adoption of a code.
The justices, however, appear to have been unmoved. In his 2011 Year-End Report on the Federal Judiciary, Chief Justice Roberts insisted that the Court had no need for a definitive code because “Every Justice seeks to follow high ethical standards,” he wrote, adding that many “ethical considerations [are] unique to the Supreme Court.”
Justice Samuel Alito made a similar comment in his 2019 testimony before the House of Representatives, explaining that the justices “take their ethical responsibilities very seriously” but need not be “formally bound” by ethics rules. The closest any justice has come to acknowledging the need for a code was Justice Elena Kagan, in the same hearing, when she testified that the chief justice was “studying the question,” while noting that it has “pros and cons.”
Recent years have seen the court embroiled in a series of ethics issues, including the late Justice Ruth Bader Ginsburg’s denigration of Donald Trump’s 2016 presidential candidacy; Justice Neil Gorsuch’s closed-door address to the Florida chapter of the conservative Federalist Society; and Justice Clarence Thomas’s repeated participation in cases concerning the 2020 presidential election, despite his wife’s election-denying activism.
In none of these instances, and others like them, was there a public statement, defensive or explanatory, from the Court itself. When Justice Amy Coney Barrett was directly challenged by members of Congress for participating in a case involving a non-profit that spent over $1 million promoting her confirmation, both she and the Court kept mum. (The late Justice Antonin Scalia once issued a formal opinion denying a recusal motion, but there was no comment from the Court itself.)
The cone of silence was finally lifted when the Court’s own interests, not merely the public’s, were compromised by the leak of Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization on May 2, 2022. Chief Justice Roberts quickly issued a press release referring to the leak as “singular and egregious breach of that trust” and announcing that the marshal of the Court would conduct an investigation of the betrayal.
The marshal’s investigation produced a 23-page report, published on Jan. 19, 2023. In an unprecedented public statement, the Court reiterated its “unanimous” support of the investigation, while announcing that the marshal’s efforts, including interviews with 97 individuals, had failed to identify the culprit. The report included a series of recommendations for tightening security, but no suggestion of instituting a formal code of conduct addressing confidentiality or related issues.
It may have been different inside the Court, with less unanimity and at least some receptivity to an ethics code. On Feb. 9, the Washington Post reported that the justices have actively considered the adoption of an ethics code, based on a “working document of issues” prepared by the Court’s legal counsel. According to the Post’s anonymous sources, the Court has “failed to reach consensus” despite years of discussion.
As with so many of the Court’s internal workings, it is impossible for the public to know what would constitute a sufficient consensus. Would it require a unanimous vote of all nine justices, a supermajority of seven or eight, or just five votes to formally adopt a code?
We do know that the justices have been loath to assert any authority over one another. Recusal motions, for example, are decided solely by the affected justice, with no review or rulings by the full court. In 1991, using language that indicated unanimity, “the Members of the Court” issued a statement announcing that they would voluntarily comply with the gift provisions of the Ethics Reform Act of 1989.
It is therefore likely that it would take only a single justice to veto the adoption of a Supreme Court code of conduct. Perhaps that has already happened. What does seem certain is that the ABA’s resolution will not change anything. If the justices seriously wanted a code of ethics, well, they would already have one.
Steven Lubet is Williams Memorial Professor at the Northwestern University Pritzker School of Law. He is the author of “Fugitive Justice: Runaways, Rescuers, and Slavery on Trial” and three other books on 19th century legal history.
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