H.R. 1 and the Code of Judicial Conduct

The first bill introduced this session in the House of Representatives, titled the "For the People Act," includes a provision requiring the U.S. Supreme Court to adopt a code of conduct applicable to the justices themselves. Similar legislation has been introduced every year since at least 2015, obviously without success. Thus, SCOTUS remains the only court in the United States — state or federal — that does not have a code of conduct governing matters such as political activity, charitable solicitation, or extrajudicial commentary. Chief Justice Roberts addressed this anomaly in his 2011 Year-End Report, citing various reasons that are, in my opinion, completely unpersuasive.

I have written and blogged about the need for a SCOTUS Code of Conduct several times over the past years (here and here, for example), noting that ethics issues have arisen concerning both liberal and conservative justices. It boils down to this (as I wrote in 2015):

At the Supreme Court level, the function of a judicial code is not to compel compliance or punish violations — both of which would be impossible given life tenure and the separation of powers. Rather, the purpose of a code would be to set identifiable standards for the justices' conduct, so that the public may know what to expect of the nine most powerful judges in the nation.

Consider, for example, Justice Ginsburg's disparaging comments about then-candidate Trump in the months before the 2016 election. Although she was subject to much criticism (including from me), and she eventually apologized, the fact is that she did not violate any provision of judicial ethics — simply because there was no such provision applicable to her court.

After the jump, I have pasted my 2015 post about the need for a SCOTUS Code of Judicial Conduct, and responding to CJ Roberts's objections.

CJ Roberts and the Supreme Court Ethics Act of 2015

With one glaring exception, every judicial system in the United States has adopted some version of the Code of Judicial Conduct – and they did not have to be coerced into doing it.  The outlier, of course, is the United States Supreme Court, which has steadfastly resisted promulgating any rules of ethics, ever since the concept first arose in the 1924, under the leadership of Chief Justice Taft.  Sen. Chris Murphy (D-CT) thinks that the situation is ridiculous and he recently introduced a bill that would require the Supreme Court to adopt written ethics rules within 180 days of the law’s enactment.  Importantly, the proposed Supreme Court Ethics Act does not specify the content of the necessary code, leaving that to the Court itself.  “There is absolutely no reason why Supreme Court justices shouldn't be subject to the same code of conduct as all other federal judges,” said Murphy in a press release, adding that the law would “make the court more accountable and more transparent.”  Co-sponsor Rep. Louise Slaughter (D-NY) agreed, explaining that “it doesn’t make sense that members of the highest court in the land are the only federal judges exempt from the code of conduct.”

Rep. Slaughter went on to detail some of the many times a justice’s ethics have been questioned in recent years, predictably focusing on the alleged faults of the conservative majority, some of whom, she said, had “allowed their names to be used to promote political fundraisers.”  In fact, however, complaints about Supreme Court justices are bi-partisan.  Fox News host Bill O’Reilly, for example, has called for Justices Kagan and Ginsburg to recuse themselves from this week’s argument in the gay marriage case, claiming that they are compromised because each has officiated at a same-sex wedding. 

None of that is going to matter to Chief Justice John Roberts, however, who regards all such questions as outside interference.  In response to an earlier version of the proposed Supreme Court Ethics Act, he flatly rejected the idea that his court, or the public, would benefit from written rules. 

The need for a written SCOTUS code is a “common misconception,” Roberts argued in his 2011 Year-End Report on the Federal Judiciary.  While recognizing that the United States Judicial Conference, which governs federal judges in all of the lower courts, adopted a Code of Judicial Conduct in 1973, Roberts asserted that there is “no need” for the Supreme Court to accept any such code as a definitive source of ethical guidance.” Instead, he explained, there are many texts and other authorities that the SCOTUS justices can consult to resolve ethics issues.  As to the Judicial Conference’s Code of Judicial Conduct, Roberts allowed that it is a good “starting point,” but added that it “cannot answer all questions,” and “it does not adequately answer some of the ethical considerations unique to the Supreme Court.”  Finally, Roberts noted that “no compilation of ethical rules can guarantee integrity.”

 All of Roberts’s observations are accurate enough but they do not justify, or even explain, the Supreme Court’s unwillingness to adopt a code of conduct.  Access to multiple additional sources, for example, is equally true for every court in the United States.  As Roberts put it, they may all “consult a wide variety of other authorities to resolve specific ethical issues [including] judicial opinions, treatises, scholarly articles, and disciplinary decisions.”  And yet no other court has thought that a sufficient reason to avoid promulgating its own code.

Likewise, the observation that “no compilation of ethical rules can guarantee integrity” is little more than a platitude.  It goes without saying that codes, rules, statutes, and even religious vows can all be broken.  Nonetheless, we still have laws to govern our actions and to articulate society’s expectations about our behavior.  Indeed, codes ranging from sacred to mundane – from the Ten Commandments and the Constitution to lawyers’ Rules of Professional Conduct and municipal building regulations – are violated every day, but few thoughtful people (apart from the occasional anarchist) would suggest that they are therefore meaningless or unnecessary.  Chief Justice Roberts’s argument to the contrary is deeply unsatisfying:  the justices have so much integrity that a code is unnecessary, and yet there is no guarantee they would adhere to a code if they had one.  The Chief would no doubt reject that sort of circular reasoning from a lawyer, and it is no more persuasive coming from the court.

At the Supreme Court level, the function of a judicial code is not to compel compliance or punish violations – both of which would be impossible, given life tenure and the separation of powers.  Rather, the purpose of a code would be to set identifiable standards for the justices’ conduct, so that the public may know what to expect of the nine most powerful judges in the nation. 

Is it right or wrong for justices to speak anonymously to the press following a controversial decision?  Is it acceptable for justices to appear at political fundraisers or to address partisan legal organizations?  To vacation with litigants in the middle of pending proceedings?  To endorse candidates for elective office? To solicit charitable contributions? To comment on legal issues or cases pending in other courts? To accept gifts from political activists?  To assign clerks or court staff to work on their memoirs or other books?  Some of these events have occurred and others have not (although they are all imaginable).  When questioned, individual justices have from time to time stated personal opinions on the virtuousness of their own activities – unsurprisingly, no justice has ever admitted doing anything wrong – but there is no definitive statement from the Court itself regarding self-imposed limits of propriety.

 Recall Chief Justice Roberts’s observation that the Code of Conduct for United States Judges, as adopted by the Judicial Conference, “does not adequately answer some of the ethical considerations unique to the Supreme Court.”  Maybe so, although the Chief identified only one such concern – recusal, which is in any event governed by a separate federal statute.  Regarding all other matters, it is difficult to envision situations in which Supreme Court justices ought to follow different ethical standards than those of lower court justices. 

Granting Roberts’s premise, however, it would be an entirely simple matter for the Supreme Court to adapt the Code of Judicial Conduct to its own circumstances.  Most state supreme courts have made revisions – some modest, some extensive – to the Model Code prior to adoption, and the United States Supreme Court could easily take the same approach.  Is the Judicial Conference Code too restrictive regarding political activity?  Is it too permissive when it comes to the use of court staff?  Well, fix it.  Of course, that would require a public declaration of the court’s own standards on matters such as confidentiality and political activity, in which case the justices could then be held publicly accountable for noncompliance – the latter being something they appear to regard with near horror. 

Ultimately, it would matter very little what the Supreme Court’s Code of Judicial Conduct might say about the acceptance of gifts, attendance at banquets, confidentiality of deliberations, or anything else, so long as it says something definitive.  It is fine and good for the justices to look to numerous outside sources for “guidance,” as Chief Justice Roberts put it, but a well-articulated Code of Conduct would actually let the public know what to expect.