Members of the United States Supreme Court are among the most powerful government officials in the country. These nine individuals — who hold their positions for life — can overturn an act of Congress. Their opinions can reshape the American economy. Their decision-making can expand or restrict the rights of all Americans.
The power of the Court is enormous, and Supreme Court Justices wield it without the use of force, through “mere reason.” The Court’s authority is derived from the public’s trust that its decisions will be issued without fear or favor, and from the perception that its decision-making is grounded in law and the Constitution rather than in political ideology.
But while the rule of law and the legitimacy of the judiciary depend on the impartial administration of justice, few formal standards expressly define acceptable conduct by Supreme Court Justices.
Of all the country’s state and federal courts, only the Supreme Court lacks a code of conduct. Instead, existing rules found in the U.S. Code provide standards concerning financial disclosures and recusals. But this set of standards is limited. And compliance with them, along with all other decisions related to ethical conduct, is left to each Justice’s discretion.
Over the years, the absence of an explicit Supreme Court code of conduct has allowed multiple ethical lapses to occur without any repercussions, as well as the hardening of practices that elevate expedience over deliberate and transparent decision-making.1 On several remarkable occasions, Justices have, intentionally or not, comported themselves in a manner that raised serious questions about their impartiality.
The situation has become untenable — for litigants, the Court, and our democracy. The Supreme Court should be subject to a code of conduct that addresses the unique circumstances arising in the course of service on the nation’s highest court, a code that gives the public a clear barometer of whether a Justice’s conduct is within ethical bounds.
The absence of a Supreme Court code of conduct has not gone unnoted. It has attracted widespread attention from a variety of key audiences, including Congress, the President’s Commission on the Supreme Court of the United States, the legal academy, and the public.2
Recently, the American Bar Association passed a resolution calling on the Supreme Court to adopt a binding code of ethics, and it urged other bar associations around the country to pass similar resolutions.3
“Only the Supreme Court, among the country’s many state and federal courts, lacks a code of conduct.”
Much discussion about the need for a Supreme Court code of conduct has focused on the “why” and “how”: Many persuasive arguments have outlined why a code is needed and how it should be implemented and enforced. By now, the need for a code has been established beyond doubt, even as debate continues over mechanisms for enforcement. But a lack of consensus on that point should not delay the implementation of a code of conduct that clearly sets forth a standard of expected conduct applicable to the Justices.
With the need established, this report seeks to move us closer to implementation, advancing the conversation by outlining the “what”: What should a code of conduct actually contain? What standard should the public expect of Supreme Court Justices?
We recognize that there are many ways to draft a robust set of ethical requirements for the Justices, and we agree that the public, policymakers, and the Supreme Court should consider and debate them. Our objective is to offer a proposal to further that discussion and for the Court to consider.
We began our effort with an analysis of the Code of Conduct for United States Judges, the ethical code applicable to federal court judges throughout the country.4 This code serves as the logical foundation for an ethics code applicable to the Justices because many of the Code of Conduct’s fundamental principles, such as integrity and impartiality, are just as applicable to the Justices as to other judges.
Currently, the Supreme Court refers to the existing code as “consultative.”5 We propose that it serve as the authoritative guidance for the conduct of the Justices. We also propose that it be supplemented, as it is in our proposal, to suit their unique circumstances.
Applying the existing code to the Supreme Court is a commonsense starting point for ethics reform, but it is not enough. Supreme Court Justices are the highest profile judges in the country. Their decisions cannot be reviewed by other judges. They have nearly unfettered control over which cases they hear. Their conduct reflects not only on the Supreme Court but also on the judicial system as a whole. When the American public’s confidence in the Supreme Court falls, trust in the lower courts falls as well.
“Applying the existing code to the Supreme Court is a commonsense starting point for ethics reform, but it is not enough.”
Given these unique circumstances, we recommend expanding the existing code for Supreme Court Justices so it provides clear and more stringent guidelines for recusal, prohibitions against conduct that creates an appearance of partiality, rigorous obligations for disclosure, and standards for transparent decision-making.
Our proposed code is based on the premise that a variety of circumstances may give rise to a Justice’s disqualification, including financial entanglements of family members, prior government service relating to a case before the Court, and lobbying activity of would-be litigants relating to the Justices’ confirmation. It would also require Justices to publish a written explanation for recusal decisions, which would help create more consistent and predictable disqualification decision-making across the federal judiciary.
The proposed code further stipulates that no Justice should sit on a case when their impartiality might reasonably be questioned, irrespective of the impact of their disqualification on the Court’s ability to hear a case with a full bench.
In addition to the existing prohibition on a judge’s participation in political activity, our proposed code of conduct calls for Justices to refrain from participating in activities that would cast doubt on their impartiality, including appearing before organizations with partisan or ideological agendas. It would also limit the Justices’ participation in fundraising events, placing more restrictions on members of the Supreme Court than other federal judges. Finally, it would recognize that certain conduct by a spouse or other close family members of a Justice would require that Justice to recuse.
Divestment and Other Disclosures
Federal judges are encouraged to divest investment assets that would require their frequent recusal from cases. Given the breadth of the Supreme Court’s jurisdiction, there is no easy way to predict which investments could pose future conflicts. Therefore, this code would require Justices to place their assets in a blind trust to avoid the risk of financial conflicts. It would also include more stringent disclosure of income and gifts, creating rules on par with those for top officials in other branches of government.
We also propose a new canon of judicial conduct that would create a duty of transparency. Of course, we recognize the importance of the Justices’ engaging in candid discussion on some of the most difficult constitutional questions of the day. However, the growing and apparently inconsistent use of emergency procedures and what has come to be known as the “shadow docket” cloak much of the Court’s activity in secrecy.
The default position of the Court should be to provide clearly reasoned opinions — after all, as Bentham wrote, “publicity is the very soul of justice.” At minimum, the Court has an obligation to explain its decision-making, the foundation of its constitutional duty, by minimizing the use of emergency rulings and providing more detailed explanations when it does issue an emergency order.
This proposed code would also require Justices to commit to making the Court’s proceedings accessible to the public, and to refrain from participating in speaking engagements that are closed to the public or media.
These additional rules would undoubtedly place additional burdens on the Justices. They would prohibit some activities in which Justices have freely engaged and subject them to additional scrutiny. But this is an appropriate requirement for a lifetime position imbued with enormous power. As the code for lower federal court judges has long recognized, “a judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.”6 These words are even more deeply relevant to the role and privilege of sitting as a Supreme Court Justice.
A Note of Caution
A code of conduct is not a panacea, but rather one of several necessary reforms. It is important to emphasize that Supreme Court ethics do not end with the Justices. Other entities involved in Supreme Court litigation or advocacy need additional ethics rules as well, to prevent them from exerting unofficial influence on the Supreme Court and the selection process. Opaque entities have created clandestine methods to influence the Court and judicial selection, and, to date, Congress has adopted no rule to shed light on these interests’ activities or funding.
Such ethics requirements must ensure that the very entities that have been the most transparent, by disqualifying themselves from activity before the Court, are not penalized relative to more secretive entities that continue to appear before the Court and engage in the judicial selection process. This concern should not stall implementation of this proposed code to the Justices. Rather, it should encourage continued analysis and proposals for additional needed reforms to ensure that conflicts of interest are not perpetuated through the actions of other entities. Another critical concern is enforcement: The code for lower court judges does not contain an express enforcement mechanism, and neither does this proposed Supreme Court code.
“We believe a code has intrinsic value because it clarifies the bounds of acceptable conduct.”
We believe a code has intrinsic value because it clarifies the bounds of acceptable conduct. Moreover, in cases of clearly egregious conduct, an established code of conduct could support Congress’s impeachment power. Accordingly, a code should be implemented even as enforcement mechanisms are under discussion, and even as we encourage the Supreme Court to develop its own appropriate procedures for responding to violations of code.
Supreme Court Justices occupy a unique and powerful space in our system of government. In return, they must — at minimum — hold themselves to the highest standards of conduct.
The model code we propose offers a solution by modifying the existing code that is applicable to all other federal judges to ensure that it addresses the unique role of the Justices of the Supreme Court.
We hope this inspires a robust conversation about how to fill the significant gap that currently exists and contributes to the imminent adoption of a binding code of conduct.