The Supreme Court’s Ethics Problem Has a Pretty Easy Solution

Much has been written on the ethical problems facing the Supreme Court. Writers fixate mostly on the lack of an ethics code and the conduct of specific justices.

Yet in this discussion, many have missed something key: These aren’t the real issues. In fact, US law already has the basic outlines of an ethics code. Federal law states directly that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

The statute, if applied uniformly and properly, solves nearly all the issues that have recently plagued the high court’s image by making the rules themselves clear.

Not only does the statute explicitly cover the justices, but every sitting justice also has accepted that the statute governs them, as noted in many cases and in the recent letter about ethics signed by the nine.

The real issue when it comes to the court’s ethical problems concerns this statute’s implementation.

More specifically, the problem is that our legal tradition directs that questions of impartiality aren’t decided by any court, but by the individual judge or justice alone with no external review.

This has its origins in a 1945 case, Jewell Ridge Coal Corporation v. Local No. 6167, where Justice Robert Jackson, in a concurrence, suggested that it has always “been considered the responsibility of each Justice to determine for himself the propriety of withdrawing in any particular circumstances.”

He noted that this recusal process “has not been uniform” and (even in 1945) produced “some confusion as to what the bar may expect.” But regardless, he says, “there is no authority known to [him] under which a majority of this Court has power under any circumstances to exclude one of its duly commissioned Justices from sitting or voting in any case.”

However, this case was decided before the 1948 law passed, which provided the Supreme Court with ample authority to define when and where a justice’s impartiality may be questioned—and no one contests that.

While it’s true that a tradition continued in which individual justices decided these matters for themselves, a strong case should be made that doing so is erroneous. Now that there’s a law, laws should be uniformly enforced.

Further, that law ought to be interpreted by the Supreme Court: Everyone needs to know when partiality might reasonably be questioned and the Supreme Court should rule on that issue as cases are presented.

Individual justices shouldn’t be allowed their own unique interpretations of this (or any other) federal law. Such matters, rather, must be decided by the court as a whole. The Supreme Court in Australia, in the case of QYFM v Minister for Immigration, recently held that recusal matters should be decided by the court and not individual judges, just like all other matters of statutory interpretation.

Of course, the Supreme Court is correct in observing that if the court rather than the individual justices decided recusal issues, one risks creating “an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate.”

The alternative—that federal law be applied in a non-uniform way by different justices undermining their impartiality—is worse. The uniform interpretation of federal law is exactly the Supreme Court’s job, after all. Outside of recusal, all decisions of any individual justice are always subject to review by the whole court. The federal law on recusal should be no different.

The best solution to much of our current troubles with judicial ethics is for the Supreme Court to do what it always does. First, end the practice of having individual justices decide for themselves when they ought to decline to hear cases. And second, insist that federal law be uniformly interpreted by the whole Supreme Court.

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 of law and teaches legal ethics—including judicial ethics—at Emory University School of Law.

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