Public confidence in the judiciary demands an ethics code that governs the judicial and extrajudicial conduct of US Supreme Court justices.
Ninety-seven percent of surveyed judges agree, based on a 2022 National Judicial College survey, along with judicial ethics experts who urged Chief Justice John Roberts in 2022 to adopt a code of conduct for the high court.
Proponents convincingly argue that there is no reason to exempt Supreme Court justices from ethics restrictions imposed on all other federal judges. If a judicial conduct code is necessary to maintain public confidence in federal district and appellate court judges, shouldn’t it also be necessary to retain public trust in the country’s nine most powerful judges?
Unfortunately, such calls for a Supreme Court code of conduct lack specifics. More details are sorely needed to answer pesky questions like, would an enforcement process accompany the enactment of a code, or would the ethics provisos merely serve as aspirational guidelines for the justices?
Admittedly, several obstacles stand in the way of creating an enforcement apparatus. Most fundamentally, who has authority to investigate and prosecute justices for misconduct? In addition, an enforcement mechanism would require significant resources and a structure that would ensure public confidence in the individuals investigating and adjudicating complaints.
How Investigations Could Look
Practically speaking, investigators would face a staggering backlog of allegations against current and former justices. One advocacy organization identified 65 separate potential lapses committed by 13 justices between 2014 and April 2022. And complaints about justice ethics have only increased since then, with accusations of confidentiality leaks, improper outside influences, and inappropriate holiday party attendance.
Complicating matters further, some investigations would involve knotty legal issues and constitutional quagmires. For instance, an unsuccessful request was made for Justice Elena Kagan’s recusal from cases challenging the Affordable Care Act, because as solicitor general, she advised the Obama administration regarding the legislation.
An inquiry into that alleged impropriety would necessitate subpoenaing memoranda and emails between the solicitor general and the White House concerning the Affordable Care Act. And the issues raised by a refusal to produce such documents claiming executive privilege or attorney-client privilege would eventually wind up before the Supreme Court.
For a code and an investigatory procedure to actually build public confidence in the judiciary, some protection must be woven into the system to protect against misuse of the process for purely partisan purposes.
This could prove problematic, since Democrats have routinely filed complaints against Republican appointees, and Republicans have reciprocated by habitually filing complaints against Democratic appointees.
It is no coincidence that a conservative group complained about Kagan’s participation in the Affordable Care Act cases. Nor is it serendipity that 74 House Democrats called on Justice Clarence Thomas to recuse from the health-care cases because of his wife’s role lobbying against the legislation.
What Rules Might Say
Besides a lack of specificity concerning whether a new code would be aspirational or enforceable, little has been offered on what the rules themselves would say. The code governing Supreme Court justices might be identical to the code governing lower court judges. Or maybe the high court is sufficiently unique in structure and purpose to support modified restrictions.
Many academics believe that the lower court model with a few changes could serve the Supreme Court well. What those changes would be is left unstated. Without a specific proposal, there is nothing to consider and debate.
An intelligent discussion concerning a code for the justices requires a specific proposal delineating the restrictions to be imposed and the nature of any investigatory or enforcement process.
To get off the dime, we need an independent committee to draft a proposed code of conduct for Supreme Court justices. In other words, the proponents of a code need to put their keyboards where their mouths are. The court could then review, tweak, and adopt or reject the committee’s proposal.
This independent committee procedure is exactly how judicial ethics codes for state court judges and lower federal court judges came into being. Over the years, the American Bar Association convened committees of experts to prepare and periodically review model codes of judicial conduct that jurisdictions then modified to fit their individual circumstances.
And there is no shortage of potential members for the Supreme Court code drafting committee. Even if the court outright rejects the committee’s proposed code and declines to adopt its own revised version, at least the public would know where the court stands.
Most code advocates suggest that court members draft their own code of conduct. That may be due to the hesitancy of lawyers to step on the justices’ toes. But there has been no action by the court since Kagan advised Congress in 2019 that the chief justice was studying the question. And maybe an independent proposal could help avoid a code of conduct adopted by a six-to-three vote with accompanying majority and minority reports.
If the time has come for a judicial conduct code for the justices, then it is also time for the profession to draft and defend a detailed proposal.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Raymond J. McKoski is a retired Illinois judge serving as adjunct professor at the University of Illinois Chicago School of Law. His book, “Judges in Street Clothes: Acting Ethically Off-the-Bench,” examines ethical restrictions on the extrajudicial activities of judges.