The Bridge: SCOTUS Operandi

It’s time for the Supreme Court to play by the rules.

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SCOTUS Operandi

It’s usually not until June that the country gives its undivided attention to the Supreme Court. But with big-ticket issues on the docket for this summer, and plenty of questions about the court’s legitimacy, there’s been a reinvigoratedcampaignfor a Supreme Court code of conduct since early this year. Congress even reintroduced a bicameral bill in support of the idea. But just a day after that legislation was proposed, the Washington Post reported that, after four whole years discussing an ethics code, the justices couldn’t reach a consensus.

In this edition:

  • An established need...
  • So what’s the hold-up?
  • Sharing our draft
  • Not a one-solution problem

Since last spring, POGO’s been working with Lawyers Defending American Democracy to craft a model code of conduct for the Supreme Court. As far as we can tell, there’s never been an effort quite like this. I had an illuminating conversation with my colleague, The Constitution Project at POGO’s policy analyst David Janovsky, who told me about the model code and what we hope it will accomplish.

Model Code of Conduct

But first,some context 

The Supreme Court is the only judicial body in the country that doesn’t have a code of conduct. Repeating that for emphasis: It’sthe only one. The highest, most influential judges in the land aren’t tied to ethics standards, but entry-level federal employees are.

There’s a previous edition of The Bridge that essentially serves as a part one to this edition, answering the question of why the Supreme Court needs a code of conduct. You can read The Bridge: Judgement Calls on our website.

Read part one now

“Supreme Court justices should be held to a higher standard because they are so much more powerful and so much more publicly prominent than any other judge,” David told me. “We know that the idea of a Supreme Court code of conduct is overwhelmingly popular. A supermajority of people would support it.”

Missing the forest

If most everyone can agree that SCOTUS needs an ethics code, what’sthe delay? Because the Supreme Court is explicitly named and created by the Constitution, there’s been a hullabaloo over how much of a say the other branches have in how things happen there — but David thinks that the constitutional footing has been over-interpreted, and the argument is a distraction. “Over the last 250 years, Congress has used its regulatory power in a number of ways, changing the size of the court and even the day the court meets. I think it’s a sticking point that has outlived its usefulness in public debate.”

The experts at POGO and Lawyers Defending American Democracy worked together to craft a model code of conduct, because it was time to move past asking whether we needed a code and time to think about what could be in one.

A novel, model code

The model code is thorough, covering in detail everything from recusal and prohibited conduct to divestment and transparency. I won’t be going into the nitty-gritty today, but you can peruse the model code and read an executive summary of the effort on our website.

David summarized for readers of The Bridge, “The underlying questions that we tried to answer are fundamental. We stepped back and said, ‘What are, now and forever, the standards we think we should be able to expect of Supreme Court justices?’”

For example, many justices argue that it’s important for them to participate in cases where their impartiality could be questioned, because when justices recuse there is nobody to take their place. Our model code emphasizes the justices’ duty to recuse when they have an actual or perceived conflict of interest.

Courting the court 

And yet, David et al. are careful to note that ethics reform doesn’t end with the justices. There’s a need for ethics guidance for the outside groups the justices interface with.

In recent years, there have been coordinated efforts by groups trying to influence the court’s rulings or the composition of the courts. These entities spend money around confirmations, lobby for or against nominees, or submit amicus briefs for or against certain parties in cases. “It’s a whole ecosystem,” David noted. “Another set of ethics reform we need, outside of a code of conduct, is more transparency and regulation of how these groups operate and how they’re financially backed.”

My colleague, Director of The Constitution Project at POGO Sarah Turberville, submitted testimony on this issue last year. There’s a lot more to say about these opaque entities trying to influence the courts, likely a whole Bridge’s worth. This is a topic I’m bookmarking for the future.

The ball is in their court now

We’re releasing this model code in the hopes it’ll be a conversation starter for members of the court and members of Congress alike.

One thing David was careful to emphasize to me was the framework of the model code. With news stories raising questions on the impartiality and propriety of Supreme Court justices (every sitting justice in the last decade has had at least one incident of concern), some may see calls for a code of ethics as reactionary, a kind of finger-pointing exercise. And finger-pointing exercises can devolve around partisan lines.

“The point of a code of conduct is to be broad and forward-looking. It’s not just about creating a standard that could prevent the most recent ethics lapse we saw in the news,” David explained. “It’s about creating a standard that could capture situations going forward that we’ve not yet faced, not just things that have happened.”

The future’s looking bright. Read the model code of conduct for Supreme Court justices on our website.

Big thanks to David for his straightforward, affable insights. For more on the Supreme Court, check out the excellent two-part video series we released a couple years ago.

  1. Why justices have too much power
  2. The case for a more accountable court