In response to public concerns about a lack of ethics rules governing U.S. Supreme Court Justices, the U.S. Supreme Court adopted a Code of Conduct for Supreme Court Justices (Code) earlier this month.
While the Court said it codified these rules and principles to “dispel this misunderstanding” that U.S. Supreme Court Justices are not bound to ethics rules, a statement preceding the Code noted that “for the most part” the rules aren’t new. The statement went on to say that the Court has adhered to the “equivalent of common law ethics rules” for some time.
The reaction from the legal profession has been mixed. Many say that codification is a step in the right direction, but the Code does not go far enough. Notably, it lacks penalties and an enforcement mechanism, and many decisions, including recusal from cases, are left up to the discretion of the Justices.
Differences from the lower courts’ code
The Code is adapted from the Code of Conduct for U.S. Judges, and contains five Canons covering the integrity and independence of the judiciary; impropriety and the appearance of impropriety; performing office duties fairly, impartially, and diligently; extrajudicial activities; and political activity.
There has been much discussion of the Code’s recusal standards, which recognize a Supreme Court Justice’s “duty to sit.” Because the Supreme Court can’t replace recused judges like lower courts, even the loss of one Justice could undermine the Court’s decision-making process, the Code’s commentary says.
It goes on to state the “rule of necessity may override the rule of disqualification” and that “individual Justices, rather than the Court, decide recusal issues.”
Bloomberg Law lays out other ways the U.S. Supreme Court’s code differs from the lower courts’, including:
- Supreme Court Justices “can’t participate in events promoting ‘commercial’ products or services” except for their books.
- The Supreme Court’s version doesn’t urge Justices to “divest from financial interests ‘that might require frequent disqualification’” or to make financial disclosures required by federal law and Judicial Conference regulations, both of which are included in the lower courts’ version. The Supreme Court’s version notes that the Justices “have agreed to comply” with the disclosure law “for some time” and will “each individually reaffirm that commitment.”
- Both codes bar Judges and Justices from engaging in political activity, including raising money for a political organization. The lower courts’ version defines “political organization,” but the Supreme Court’s version does not.
Law.com also notes that the Supreme Court’s Code modifies the lower courts’ language covering a Judge’s use of their “chambers, resources or staff in the course of extrajudicial activities,” allowing the “Justices to accept comprehensive security protection.”
Response from the legal profession
Mary Smith, President of the American Bar Association, said that while the Code fails to address enforcement, it is a “positive first step toward ethics transparency.” She also voiced appreciation for a study Chief Justice John Roberts has directed to examine best practices in “complying with the code.”
For background, the ABA adopted Resolution 400 in February 2023 urging the Court to assume a binding ethical code to promote public confidence in the U.S. justice system. The Chicago Bar Association passed a resolution in support of ABA’s Resolution 400 earlier this month.
“The absence of a clearly articulated code of ethics for the Justices of the Supreme Court threatens the legitimacy of the Court, as well as all American courts and the American judicial system,” CBA president Ray Koenig said in a statement.
Steven Lubet, a Professor of Law at Northwestern Pritzker School of Law, told Reuters that the Code “answers a public demand in a very respectful and thorough way,” but he has concerns that the Justices retain discretion over recusals.
“Nobody should be the sole determiner of their own biases, but they maintain that,” he said.
Janai Nelson, President and Director-Counsel of the Legal Defense Fund, noted that the Code departs from the Code of Conduct for U.S. Judges in many instances by stating what Justices “should do” rather than “shall do.”
This may imply that “complying with the code is a suggestion rather than a critical mandate,” she said, urging the Court to make the principles clearer and binding.
“The public’s concerns about Supreme Court ethics are based on real — not imaginary — problems,” Nelson said. “They should be met by a Code of Conduct that veritably ensures the strongest possible commitment to ethics in our nation’s highest court.”
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