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Case of the Missing Supreme Court Ethics Code Offers GCs Lessons

Jan. 23, 2023, 10:00 AM

How does your organization stack up ethically against, say, the US Supreme Court?

It turns out the “bar” isn’t so high. The country’s highest court—an organization that should lead the world in creating and upholding ethical standards—is, incredibly, lagging far behind the pack.

The case of the missing SCOTUS ethics guardrails is a lesson for all of us.

Around the globe, employees in organizations of all sizes are bound by conflict-of-interest rules. These rules promote transparency, prevent abuses of power, and boost confidence in decision-making.

Nearly all federal judges in the US also are subject to a strong code of conduct. The outlier? Inexplicably, the nine justices of our Supreme Court.

The justices in theory follow some of the recusal rules applicable to other federal judges, but whether they are required to do so is a topic of ongoing debate. Meanwhile, calls are growing for the high court to establish clear ethics standards.

“Trust us,” Chief Justice John Roberts says, deflecting those calls. Even as the absence of a conduct code is eroding trust in the court in an era in which it’s becoming more and more politicized.

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Justices across the ideological spectrum have failed to recuse themselves in situations that pose clear conflicts. Their involvement in an outside nonprofit organization, the Supreme Court Historical Society, mixes money with access in ways that further undermine the court’s impartiality, as recently detailed by the New York Times.

The society is a nonprofit supported by the justices that has raised over $23 million in the last two decades, according to the Times report. Its mission is to preserve the court’s history and educate the public about its importance to society. For donations starting at $5,000, companies, advocacy groups, and law firms can mingle with the justices at the society’s annual black tie gala dinner, as well as at society-sponsored lectures and case re-enactments.

A significant portion of the donations come from special interest groups, or lawyers and firms that argue cases before the court, often in the same years when they’ve had an interest in a pending federal case on appeal or even at the high court. Chevron. Facebook. UPS. Goldman Sachs. While transparency can help cure potential conflicts, the society is a non-profit that does not have to disclose its donor base. It declines to voluntarily provide such a list.

Can donating to the society influence justices on the outcome of a particular case? That’s not likely. Still, one prominent anti-abortion advocacy group made society membership part of its strategy to influence the court. The tie between donations and cases before the court at least suggests that litigants believe the society could give them an edge.

If you’re arguing a case in front of the court, how would you feel if your opposing counsel was a major donor, hanging out with the justices at a dinner just a week earlier? For the sake of appearances alone, an organization so closely tied to nine of the most powerful people in the country should at a minimum insist that all donations be public. It should also decline money from litigants who have cases pending before the court.

Know Your Code

Having a written code of ethics matters. Ambiguity is the enemy of integrity.

Without clear guidelines, everyone is free to decide for themselves what’s appropriate. Judges are no different than the rest of us—they benefit from having ethical rules that govern their own conduct, as it protects their reputations as independent, neutral arbiters.

How does your organization handle conflicts of interest? Do you have a code of ethics governing whether you can accept gifts from a vendor, or sponsor a vacation for a potential client? Was your code written by a law firm, and simply sent around for everyone to electronically accept without further discussion? If you asked employees to find a copy of your code, could they do it?

How you approach conflicts of interest can play a significant role in creating the right ethical atmosphere within your organization. It can also help prevent legal issues or embarrassing brand moments.

It’s time to see how you stack up against the Supreme Court.

Rob Chesnut is the former general counsel and chief ethics officer at Airbnb. He spent more than a decade as a Justice Department prosecutor and later oversaw US legal operations at eBay. The author of “Intentional Integrity: How Smart Companies Can Lead an Ethical Revolution,” Rob consults on legal and ethical issues.

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Jeff Harrington at jharrington@bloombergindustry.com