A new code of conduct announced by the
But not on key issues such as enforcement, conflicts of interest and what behavior crosses the line into misconduct.
The justices wrote that their version was “adapted” from the federal judiciary’s code of conduct to reflect their “unique institutional setting.” In practice, some of the differences result in less stringent rules for the justices around recusing from cases and reporting potential violations by their colleagues.
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The Supreme Court’s code doesn’t create a system for the public to file complaints or for a formal review of alleged ethics breaches. According to a commentary section included with the code, Chief Justice
The justices’ new code roughly follows the same structure — divided up into five sections — as the one that for years has applied to federal district and appeals judges. A side-by-side review highlights some of the changes.
Removes nod to ‘enforce’
The first section is the shortest in both documents, urging judges and justices to “uphold the integrity and independence of the judiciary.”
The justices’ version leaves out a sweeping opening line in the lower court version: “An independent and honorable judiciary is indispensable to justice in our society.” Lower court judges are told to “maintain and enforce” and “personally observe” high standards of conduct, while the justices’ version doesn’t include “enforce.” The commentary in the lower courts’ version discusses how the code is relevant to the judicial disciplinary process. There is no such language in the Supreme Court version.
Adds ‘knowingly’ standard
The second part directs judges and justices to avoid not only “impropriety” but also the “appearance of impropriety.”
Both versions say judges and justices shouldn’t “lend the prestige” of their office to benefit themselves or others, or to allow others to give the impression that they’re in a “special position” to influence a jurist. The Supreme Court’s version twice adds the word “knowingly,” which Gabe Roth of court watchdog group Fix the Court criticized in a statement as giving the justices room to claim ignorance when accused of improper conduct.
No duty to report colleagues
The third section says judges and justices should perform their duties “fairly, impartially, and diligently.” Both versions feature language about avoiding “harassing, abusive, prejudiced, or biased” behavior and not being “swayed by partisan interests, public clamor, or fear of criticism.”
The lower court code directs judges to “take appropriate action” if they get “reliable information” that a judge, court employee, or lawyer may have violated ethics rules. The Supreme Court’s version only refers to acting on information about employee misconduct.
When it comes to recusals, the justices include a new line: “The rule of necessity may override the rule of disqualification.” The Supreme Court suggested in commentary that the bar should be higher for a justice to step aside compared to lower courts, where judges can more easily step in for a disqualified colleague. The loss of one justice can distort the process, the commentary states, since it takes at least four members to vote to hear a case and at least five to overturn a lower court decision.
The justices should “narrowly” interpret language about recusing, they say in the commentary, if a case potentially affects the interests of relatives.
The Supreme Court’s code leaves out a section that gives lower court judges the option of including parties in disqualification decisions. It adds language stating that justices’ ties to parties that file amicus or “friend-of-court” briefs don’t require recusals.
A ‘commitment’ to disclose
The fourth part says judges and justices can participate in “law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and governmental activities” and to “speak, write, lecture, and teach.” Both versions then delve into what’s not allowed.
The justices’ version adds a line that they can’t participate in events promoting “commercial” products or services, with an exception for their books. Book deals and nationwide tours are far more common for the justices than for lower court judges.
The Supreme Court code doesn’t include a section in the lower courts’ version that urges judges to divest from financial interests “that might require frequent disqualification.” It also omits a line that says lower court judges can’t accept outside compensation that exceeds “what a person who is not a judge would receive for the same activity.” The Supreme Court’s commentary alludes to a possible reason for that difference, noting that book deals aren’t subject to a salary cap that applies to teaching jobs.
The lower court version directs judges to “make required financial disclosures” per federal laws and the Judicial Conference’s regulations. The Supreme Court’s version says that “for some time” the justices “have agreed to comply” with the disclosure law and that the nine sitting members “each individually reaffirm that commitment.” In a Wall Street Journal interview this year, Justice
No ‘political organization’ definition
The final section bars justices and judges from engaging in political activity. That includes making speeches, contributing funds, or raising money for political organizations or candidates.
The lower courts’ code includes a definition for “political organization” while the Supreme Court’s does not; the lower court code describes it as a political party, a group affiliated with a party or candidate, or another “entity whose principal purpose is to advocate for or against political candidates or parties” during elections.
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Elizabeth Wasserman
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