For the first time, the United States Supreme Court has adopted a formal code of conduct.
The 14-page document, released on Tuesday and signed by all nine judges, comes after months of public pressure over alleged ethical lapses. It codifies what has until now been an informal ethical standard that governed the Supreme Court. It also comes after favorable views of the Supreme Court hit an all-time low this summer.
Why we wrote this
Until now, the justices of the US Supreme Court had no code of ethics. The new document contains no penalties, and most of the rules will be enforced… by the judges themselves. But with public confidence in the court at an all-time low, doing anything is a positive step, experts say.
Whether the existence of the code itself will be enough to restore that trust remains to be seen. The code contains the word “must” 53 times, but is silent on what will happen if a justice deviates from the ethical standards outlined. And that, according to legal observers, is a surprising omission.
The lack of a code is “something that has been a glaring mistake for so many years. … But when it came time to put pen to paper, I think they fell short,” said Gabe Roth, executive director of Fix the Court, a nonprofit that advocates for more transparency in the federal judiciary.
But it is positive that the court has responded to that public pressure, he adds. “They represent all of us in one way or another – not in the way they decide cases, but as an institution. And public pressure must be exerted on institutional practices.”
For the first time, the United States Supreme Court has adopted a formal code of conduct.
The 14-page document, released on Tuesday and signed by all nine judges, comes after months of public pressure over alleged ethical lapses. It codifies what has until now been an informal ethical standard that governed the Supreme Court. It also comes after favorable views of the Supreme Court hit an all-time low this summer, according to Pew Research Center.
Whether the existence of the code itself will be enough to restore that trust remains to be seen. The code contains the word “must” 53 times, but is silent on what will happen if a justice deviates from the ethical standards outlined. And that, according to legal observers, is a surprising omission.
Why we wrote this
Until now, the justices of the US Supreme Court had no code of ethics. The new document contains no penalties, and most of the rules will be enforced… by the judges themselves. But with public confidence in the court at an all-time low, doing anything is a positive step, experts say.
The lack of a code is “something that has been a glaring mistake for so many years. … But when it came time to put pen to paper, I think they fell short,” said Gabe Roth, executive director of Fix the Court, a nonpartisan nonprofit that advocates for more transparency in the federal judiciary.
But it is positive that the court has responded to that public pressure, he adds. “They represent all of us in one way or another – not in the way they decide cases, but as an institution. And public pressure must be exerted on institutional practices.”
For much of the year, the judges were faced with questions about alleged ethical irregularities. The public investigation began with ProPublica reports detailing secret gifts Judge Clarence Thomas received over decades from billionaire Republican donors, ranging from vacations and private jet trips to forgiven loans and college tuition for a relative. According to reports, Judge Samuel Alito also failed to disclose subsidized vacations. Justices Sonia Sotomayor and Justice Neil Gorsuch faced questions about the sale of publications and questions about denials.
While all other members of the federal judiciary are subject to the Judicial Code of Conduct, judges have largely overseen their own compliance with it. The code aims to “remove this misunderstanding,” the statement added, saying that “unlike all other lawyers in this country, (the judges) consider themselves not to be limited by any ethical rules.”
“It is certainly significant that the court has finally adopted a code of conduct. … It reflects that public pressure and public attention to the court’s ethical shortcomings are having an impact,” said Alicia Bannon, director of the Judiciary Program at the Brennan Center for Justice. But “it was a real missed opportunity for the court to really take ethics seriously.”
What’s in the code?
The document contains five rules of conduct for judges inside and outside the court, including standards for refusal, and a commentary that elaborates on the code. The code does not appear to address the central concern many have about the Supreme Court’s ethics rules: enforcement is largely left up to the justices themselves.
For example, a judge must “keep informed of (their) personal and fiduciary financial interests” and “make a reasonable effort to stay informed of the personal financial interests” of his spouse and children, the code says. Judges are expected to seek advice from the court’s Office of Legal Counsel and relevant judicial committees. There are no details about who or what would lead the justices to make these efforts.
Sometimes broad and vague language makes it unclear where the line lies between appropriate and inappropriate behavior. There are clear examples of where a judge should recuse himself from a case, for example when someone the judge or his spouse knows is a party to the case or represents a party to the case. But a judge must also recuse himself “in a proceeding in which the judge’s impartiality can reasonably be questioned,” according to the code.
Lower court judges, meanwhile, must follow mandatory rules for refusal. Parties in lower courts can also file a motion asking a particular judge to recuse himself.
The general language in the code “suggests that (the justices) view this (as) aspirational, rather than binding,” said Carolyn Shapiro, co-director of the Institute on the Supreme Court of the United States at the University of Chicago. Kent College of Law.
“There is an extraordinary degree of discretion involved in applying these standards,” she adds. But “I’m not sure it would be possible to write standards that don’t include that as an element.”
Does the Supreme Court need more leeway?
In summary, the justices argue that the Supreme Court should have more relaxed ethics rules than lower courts. For example, most courts of appeal consist of at least eleven judges, while there are only nine judges.
“The loss of even one judge could undermine the ‘fruitful exchange of views that is indispensable’ for the Court’s decision-making process,” the summary reads. “Much can be lost if even one judge does not participate in a particular case.”
The document does acknowledge that more may need to be done to strengthen the new code of conduct. The court “will assess whether additional resources are necessary,” it said. And the Office of Legal Counsel will “maintain specific guidelines (for) recurring ethics and financial disclosure issues,” and provide annual training to judges and their staff.
The fact that the document exists at all is remarkable. As the Supreme Court concedes, many of the rules are not new, but have never been formally formulated for the public. That in itself is worth recognition, experts say, but so are the code’s shortcomings.
“If you accept that the Supreme Court has a different position than lower court judges, it becomes even more important to implement ethical safeguards up front to ensure that ethical problems do not arise in the first place,” said Ms. Bannon of the Brennan Center for Justice.
“The North Star should be: Are you maintaining public confidence in the justice system?” she adds. “Here there was a missed opportunity to really introduce safeguards that prevent judges from finding themselves in situations in the first instance that would undermine that trust.”