Bloomberg Law
Nov. 5, 2020, 9:00 AM

A Weakened Supreme Court Needs a Code of Ethics

Veronica Root Martinez
Veronica Root Martinez
Notre Dame Law School

Over the coming days, weeks, and months, much ink will be spilled and Twitter will explode over the appropriate structure of the U.S. Supreme Court. How many justices should be on the Supreme Court? Should there be term limits? Were the Republicans just responding in kind to tactics levied by the Democrats when they were in power?

The answers to these questions matter and will have significant consequences. The most important of its potential consequences, however, is not who will be in power or whether the Supreme Court justices were appointed by Republican or Democratic presidents. The most important consequence of the way in which judicial nominations have proceeded over the past several years—both at the Supreme Court level and throughout the lower Article III courts—is whether the public will continue to perceive the court and its rulings as legitimate.

The Supreme Court has power because we have all chosen to submit to its power. It has no army. It cannot enforce its own pronouncements. What it has is our perception that its rulings are legitimate, and because we view its work as legitimate, we comply. We adhere to its judgments—even when we deeply disagree—because we believe, even if we aren’t consciously aware of it, in the rule of law and the principles that lay the very foundation of our nation.

Legitimacy of the Supreme Court Has Been Weakened

The reality is that the legitimacy of the Supreme Court has been weakened. It was harmed when the U.S. Senate refused to give Merrick Garland a hearing after having been duly and lawfully nominated by President Obama. It was harmed when the current president’s rhetoric forced Chief Justice John Roberts to issue a statement rebuking the idea that judges were politically tied to the president who appointed them.

And its legitimacy has been shaken by the Senate’s most recent confirmation process, with those leading the effort acting in direct conflict with their prior statements regarding the appropriate timing for confirming Supreme Court justices.

It is not at all clear that either the Republican or Democratic parties are willing or equipped to lay down their own quest for power long enough to ensure the adoption of policies and procedures that will serve to strengthen the legitimacy of the court. The political tit for tat we have seen involving the judiciary over the past few weeks reminds one of children in the backseat of a car playing a game of “she touched me!”

We can hope and pray that our elected officials choose to rise above the fray and take the actions necessary to reform the judicial nomination and confirmation process—throughout the federal judiciary—to decrease the partisan politics that have infected those constitutional imperatives. But the reality is, the Supreme Court can, on its own power, take actions to shore up the public’s perception of its legitimacy. It can do so today.

Supreme Court Justices Are Human

Unlike all other federal judges, the justices of the Supreme Court are not subject to a code of ethical conduct. Congress is, rightly, reticent to create a code of ethics for the Supreme Court, due to separation of powers concerns and a desire to keep its influence free from that of an independent judiciary.

The court, however, on its own initiative, is free to develop and adopt a code of ethics to govern the justices’ behavior. And it should. It should do so immediately.

Even without the current political realities, I would argue in favor of the Supreme Court’s adoption of an ethics code to govern the justices’ conduct. To believe that the justices are not in need of such a code is, at best, naïve, and at worst, arrogant.

One might argue that an ethics code is not needed for a group so small, because their work is relatively transparent. One might say that the justices are perfectly capable of performing their own assessment on whether their decision-making might be impacted by a prior relationship, triggering a conflict of interest, or investment, triggering a need for recusal.

The reality, however, is that every piece of research I’ve seen on a person’s ability to act ethically confirms that none of us, not one, acts as ethically as we would like to think we would. Every piece of research I’ve seen convinces me that we are all—every one of us, including myself—capable of acting outside of the boundaries of acceptable behavior we would set for ourselves and others. We all slip. There is no reason to think that Supreme Court justices are somehow immune to the frailties of human behavior.

But in light of the political realities of today, the need for the justices to adopt their own ethics codes can no longer be relegated as some sort of academic debate. The erosion of the Supreme Court’s legitimacy did not originate with the court itself, but the court has a duty to deal with the fallout.

The court must protect and preserve its own position as one of three, co-equal branches of government. To do that, it must act in every way possible to signal to the public that the institution and its members—the justices—are above reproach.

One way it can do so is to adopt a code of ethics that governs its members, just as every other Article III judge in this country is similarly governed.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Veronica Root Martinez is a professor of law at Notre Dame Law School, the Robert & Marion Short Scholar, and director of the Program on Ethics, Compliance & Inclusion.