This week, the US Supreme Court announced its adoption of a code of conduct following months of ethics questions surrounding several justices—most notably undisclosed lavish gifts to Justice Clarence Thomas and his family.
Ethics experts weigh in about what the code of conduct achieves, next steps including the development of case law, and what role is left for Congress.
Let the Case Law Begin
Michael Broyde, Emory University School of Law
The newly announced Supreme Court Code of Conduct is a substantial contribution to alleviating the problems the Supreme Court currently confronts: a lack of clarity as to what—if any—ethical rules govern justices.
The document squarely addresses questions of justices’ recusal while acknowledging the Supreme Court’s unique place in our federal judicial system. Under Canon 3B3, it says that the “rule of necessity may override the rule of disqualification.” Justices, unlike judges in federal district courts or circuit courts of appeals, are irreplaceable.
When a Supreme Court justice doesn’t participate in a case, the court hears the matter with an incomplete bench—almost like an eight-person baseball team having to staff all nine positions on the field. Thus, the creation of an ethics code enhances respect for the Supreme Court by providing insight to litigants and the public as to how justices should weigh the decision to recuse.
But this isn’t enough: Now that there is statutory law on recusal, next comes case law. The Supreme Court needs to hear cases in its usual course of business concerning the application of this ethics code and to resolve questions arising from recusal decisions. US law isn’t defined solely by a written code, but also by a common law of interpretation that comes from judges and justices. This is true for ethics rules as well.
For example, Canon 3B3 simply screams out for elaboration and interpretation via case law. When does the rule of necessity override the rule of disqualification? How? In what way?
The resolution of questions like these can’t be left solely to individual justices to decide for themselves and must be reviewed by the full Supreme Court. The court must provide uniform and binding interpretation for all justices going forward.
A Great Start
Charles Geyh, Indiana University Maurer School of Law
The code of conduct represents a great start. It is substantially similar to codes other courts have adopted and is a good faith effort to reassure the public that the court takes its ethical responsibilities seriously.
It also underscores the importance of the less formal dialogue between the court and Congress, in which the court responded constructively to congressional pressure for reform in a spirit of comity—to the end of enabling progress to be made without a Constitutional showdown.
That said, the court’s adoption of a code is only a first step. Whether it’s a meaningful one depends on what the court does next. If the code is nothing more than a cynical attempt to mollify Congress, the media, and court critics, then file away and ignore, ethical transgressions will persist, public confidence will continue to decline, and we will be no better off than before the code was adopted.
On the other hand, if the justices take steps to internalize the code as judges in the lower courts have—by reading it, talking about it, applying it, seeking interpretive guidance from the Judicial Conference Committee on Codes of Conduct, and periodically updating and revising it, this will help to establish a code culture that could make a meaningful impact.
Congress Still Needs to Act
Danielle Caputo, Campaign Legal Center
For years, good government advocates, like the Campaign Legal Center and many in Congress, have been calling for the Supreme Court to bind itself to a code of ethical conduct and designate a body to enforce that code of conduct. Despite our initial high hopes, the newly adopted code misses the mark by a mile.
First, the code doesn’t actually require anything from the justices, as it only contains principles the justices “should” abide by. For a code to truly regulate conduct, its terms must be mandatory. This, combined with no method of enforcement at all, means the code is nothing more than a non-binding pledge.
Further, even with the adoption of this code, the court’s ethics provisions remain woefully behind the other two branches of government. The court is still unable to meaningfully review substantial allegations of ethical misconduct, doesn’t require transparency regarding a justice’s decision whether to recuse themselves from a case, and doesn’t provide clear rules for handling conflicts of interest.
It is critical for the public’s trust in our democratic institutions that the highest court in the nation be held to the highest ethical standards. However, this so-called code is a clear indication the court is not interested in doing so on its own accord, and instead believes it shouldn’t be accountable to anyone or anything but themselves.
It is vital that Congress continue its work to advance legislation that would create strong ethics rules for the court that contain clear guidance and a meaningful mechanism for enforcement.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Author Information
Michael J. Broyde is a professor and teaches legal ethics—including judicial ethics—at Emory University School of Law.
Charles Gardner Geyh is professor at Indiana University Maurer School of Law.
Danielle Caputo is a member of the Campaign Legal Center ethics team, holding elected officials accountable for ethics violations and proposing stronger ethics laws and rules for every level of government.
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