ANALYSIS: Most Lawyers Want Ethics Code for—And By—Supreme Court

Lawyers overwhelmingly want the US Supreme Court to adopt a binding ethics code, but they’re divided on the question of who should write it, Bloomberg Law survey results say.

The high court is the only judicial body in the US that doesn’t have a formal code of ethics, but recent revelations concerning luxury vacations and other perks that justices have received from groups and wealthy individuals ignited a debate this year—even drawing the justices in—about whether the court should have a formal ethics code.

This spring, almost 80% of the 784 attorney respondents to Bloomberg Law’s State of Practice Survey said that the Supreme Court should adopt a formal ethics code. Similarly, in the summer, 72% of the 442 respondents to a follow-up survey agreed that the high court should have such a code. And, on the flip side, the percentage of lawyers who said that the high court shouldn’t have an ethics code has decreased slightly since the spring survey.

The survey results make clear that most lawyers think that the justices should be held to an ethical standard.

Several of the justices, including Brett Kavanaugh and Elena Kagan, have indicated they’re open to some sort of ethical regulation. In May, Chief Justice John Roberts said in a speech that he intended to make sure that the court “adheres to the highest standards of conduct.”

Even so, no justice has ventured to suggest how ethical standards might be applied more stringently, and Roberts has indicated that Congress should not play a role in dictating how the court should conduct itself. In a Wall Street Journal interview in July, Justice Samuel Alito said that Congress doesn’t have the authority to impose ethics rules on the high court.

Lawyers tend to agree with the justices. When asked in the summer survey how a code of ethics should be imposed, 70% of attorneys surveyed by Bloomberg Law over the summer said that the justices should be responsible for adopting the code themselves, while only 50% said that Congress should require the adoption of a code. (Respondents were able to choose more than one option. Of those who chose only one group or the other, “justices” outnumbered “Congress” by a 2-to-1 margin.)

Six percent (18) of the respondents selected the “Other” option. Of those who chose to specify what they wished for the court in terms of ethics rules, responses included:

• An independent panel of experts (attorneys, judges, ethics professionals) should draft a code, and the justices would be able to publicly negotiate changes and adopt it.
• The Supreme Court should propose a code of ethics, which would be implemented by legislative action and could be enforced by the executive branch, with final judicial review by the Senate.
• A constitutional amendment should be adopted.

Despite a lot of talk—and even an ethics complaint filed against Alito—there’s been little action at the federal level so far, except for a likely doomed Senate bill on high court ethics.

Bloomberg Law subscribers can find related content on our Surveys, Reports, and Data Analysis page, our Supreme Court Today Tracker, and US Law Week’s Supreme Court Today newsletter.

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