Beyond Labels

A 360° Discussion of Foreign, National and Local Policy Issues

Should Congress adopt a Code of Ethics for the Supreme Court?

I just checked the Beyond Labels website and didn’t find a suggested topic posted for the next (or a subsequent) meeting. It’s the one I proposed in the comment I posted on 13 June: Should Congress enact legislation prescribing, or creating an independent commission to prescribe, a code of conduct binding on the US Supreme Court, analogous to the US Judicial Conference’s Code of Conduct for United States Judges (https://www.uscourts.gov/sites/default/files/code_of_conduct_for_united_states_judges_effective_march_12_2019.pdf), initially adopted in 1973. The current version took effect in 2019.

The current Code of Conduct sets out some basic ethical considerations for judges in all federal courts and states that “[a]ll judges should [but are not obliged to] comply with this Code …”, with some specified exceptions for part-time and pro tem judges and a few others. The Code sets forth five basic ethical considerations (called Canons):

Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary
Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities
Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently
Canon 4: A Judge May Engage in Extrajudicial Activities That are Consistent With the Obligations of Judicial Office
Canon 5: A Judge Should Refrain From Political Activity

The Code relies on self-regulation by judges; there is no enforcement mechanism. However, judges may request advisory (i.e., non-binding) opinions from the Judicial Conference’s Committee on Codes of Conduct regarding the applicability and meaning of its provisions.

One example of such an advisory opinion: No. 53: Political Involvement of a Judge’s Spouse. Perhaps Justice Thomas is familiar with that one. We’ll see what, if anything, he does about that issue if and when cases come before the Court involving the January 6 attack on the Capitol or Trump’s involvement in that attack or in attempts to subvert the 2020 Presidential election.

To me, one weakness of the Code of Judicial Conduct is its lack of transparency. The Committee on Codes of Conduct publishes some, but not all, of its advisory opinions, and the Code doesn’t require justices to make public when they’ve asked for an advisory opinion or when they’ve had to consider whether one of the Canons applies to them and, if so, how that judge resolved the question. Also, leaving ethical decisions to the affected judge violates the maxim “Nemo judex in causa sua [No one is judge in his own case]”, attributed to Edward Coke, the 17th-century English jurist who was one of the great common law legal scholars of all time.

Recently, reports have emerged of questionable ethical conduct by Justices Thomas and Alito; they are probably not alone among the current Justices. The justices of the Supreme Court are not subject to the Judicial Conference’s Code of Conduct, or to any other code of conduct or ethics.

Should that change? If so, how?  

Would adoption by Congress and the President of a code of ethics for the Supreme Court violate the Constitutional separation of powers? If so, how?

Is there a way to enforce a judicial code of ethics for the Federal Courts? If so, how?

Here are links to some websites and recent articles related to this topic:

Summary of the Department of Justice Ethical Standards for Executive Branch Employees (1993), adopted as a Federal Regulation and applicable to “… all employees of the executive branch ….”

President Biden’s 20 January 2021 Executive Order on enforcement of executive branch ethics standards (https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-ethics-commitments-by-executive-branch-personnel/)

Code of Official Conduct of the House of Representatives, adopted by the House Ethics Committee (https://ethics.house.gov/publications/code-official-conduct), which is known for not enforcing the Code of Ethics.

22 February 2023 American Bar Association statement supporting adoption of a binding Supreme Court code of ethics (https://www.americanbar.org/advocacy/governmental_legislative_work/publications/washingtonletter/feb-23-wl/scotus-ethics-0223wl/)

17 April 2023 article in Politico (https://www.poynter.org/fact-checking/2023/why-doesnt-the-supreme-court-have-a-formal-code-of-ethics/) discussing Supreme Court Justices’ questionable ethical decisions, current proposals to adopt a Supreme Court code of conduct and how it might be enforced, and related constitutional issues.

20 June 2023 article in Pro Publica (https://www.propublica.org/article/samuel-alito-luxury-fishing-trip-paul-singer-scotus-supreme-court)  about Justice Alito’s non-disclosure of his 2008 fishing trip to Alaska paid for by Paul Singer, a hedge fund manager and significant donor to Republican candidates and causes, who later had cases before the Supreme Court, and Justice Alito’s Wall Street Journal Op-ed defending his decision (https://www.wsj.com/articles/propublica-misleads-its-readers-alito-gifts-disclosure-alaska-singer-23b51eda)

26 May 2023 New York Times editorial (https://www.nytimes.com/2023/05/25/opinion/supreme-court-ethics-act.html?smid=em-share) on the need for a Supreme Court code of ethics


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