The Supreme Court Needs a Code of Conduct
Falling trust in the high court is a threat its authority.
Seven months ago today, we witnessed one of the most shocking events in Supreme Court history: Someone leaked the draft of a landmark decision, revealing that Roe v. Wade was going to be struck down.
The news hit the public like a bomb. The decision would change American law for tens of millions of people. It was also a serious breach of discretion for the Court, where leaks are almost unheard of. It was not the first time a decision's outcome had made its way to the public before the Court intended—in fact, the initial Roe v. Wade decision in 1973 was also leaked—but nothing quite like this had ever happened before. Even in 1973, the leak came after the decision was final and did not include a full draft of an opinion written by one of the justices.
Chief Justice John Roberts wasted little time addressing the public, calling it a “betrayal of the confidences of the Court” and insisting whoever leaked the document had violated “an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court.” Curiously, one important thing was absent from Roberts’ statement: what code or which rules had actually been broken. Perhaps because there were none to cite. Roberts could only point to tradition.
Unlike all other federal justices and state judges, Supreme Court justices do not operate under a formal code of conduct. Similarly, the Code of Conduct for judicial employees applies to all federal court employees except those who work for the Supreme Court. Justices still operate under some rules: Federal law requires them to recuse themselves from cases where a personal bias or financial interest prejudices them, and they have to submit financial disclosures. But these rules are vague, self-enforced, and often ignored.
If you find this peculiar or unsettling, rest assured that you are not alone.
Ethics codes or codes of conduct for most federal justices and employees of those justices can vary. According to the Congressional Research Service, broadly speaking, these codes typically ask judges to do a few things in particular:
Uphold the integrity and independence of the judiciary
Avoid not only impropriety but the appearance thereof
Perform the duties of their offices fairly, impartially, and diligently
Avoid extrajudicial activities that would be inconsistent with the obligations of judicial office
Refrain from political activity
Unfortunately, many Supreme Court justices—current and past—have stepped across these lines in recent memory. As Johanna Kalb and Alicia Bannon put it in a white paper on this subject, "almost all members of the Supreme Court have been criticized for engaging in behaviors that are forbidden to other federal court judges, including participating in partisan convenings or fundraisers, accepting expensive gifts or travel, making partisan comments at public events or in the media, or failing to recuse themselves from cases involving apparent conflicts of interest, either financial or personal.” Save the newest justice, Ketanji Brown Jackson, every member of the current Supreme Court has been called out for actions that would violate a standard judicial code of conduct.
Naturally, the Court is aware of these criticisms. In fact, before the pandemic, Chief Justice Roberts was reportedly considering the introduction of an ethics code for the nation's high court, though none has materialized. All the while, public trust in the Supreme Court has plummeted, and public calls for the court to adopt some kind of clear ethical code have only grown louder, especially as the justices continue to find themselves in hot water.
If you're anything like me, you might be wondering how is this possible? How could every other federal justice and courtroom in the nation operate under a certain ethical code, but the most incontrovertibly important nine justices don't? The answer is not as obvious as you may think.
For starters, it's not immediately clear who would (or could) create or enforce a Supreme Court code of conduct. The Framers very intentionally insulated the Supreme Court from Congressional influence. Legislative efforts to require the court to adopt some kind of ethical code would likely violate the separation of powers.
Even more confounding is what would happen if the Court didn't want Congress to create such a code. Legally, it could challenge the legislative branch's ability to create the code, and the case would end up... before the Supreme Court. Who could then determine whether or not it was legal. In other words, if the Supreme Court had to rule on accepting its own code of conduct, we have no idea how it would rule.
It's understandable that these sorts of complications have prevented a simple path forward for a Supreme Court code of conduct. But none of them should actually stop the court from creating and adopting their own, which seems to be the obvious solution. And while it may be a little awkward for the court to author its own guidelines, it would be much better than what we have now.
What the court ultimately needs is a clear and robust code of conduct that looks a lot like the ones that apply to other federal justices and state judges. Justices should not be appearing at public fundraisers. They should not be opining publicly on political candidates. They should be required to avoid not just conflicts of interest, but the appearance of conflicts of interest. These codes of conduct can be enforced primarily by the chief justice and other justices, as well as public sentiment. And, in rare and extraordinary circumstances, by Congress's power to impeach.
In a worst-case scenario, where the court continues to refuse to introduce its own code, Congress could attempt to impose one on them. But that should be a last resort, and not before a lengthy, bipartisan, and highly visible public campaign to press the justices to introduce a code of conduct for themselves (or simply adopt the existing ones followed by lower federal courts).
It’s hard to overstate the necessity of this change. The Court’s power does not just lie in its constitutional authority but in the public’s respect for its rulings. Just 7% of Americans currently have a “great deal” of trust and confidence in the Supreme Court, and 58% disapprove of the job the Court is doing. Members of the Court flaunting standard codes of conduct that other judges observe will only further degrade public trust.
At a time when Americans are already deeply skeptical of the media, Congress, election outcomes, and people who don’t share their politics, degrading trust in the high court should be treated as the threat to societal order that it is. Other Supreme Court reforms could help as well, but this one is the most pressing. And it wouldn’t be hard for the Court to do.
There are plenty of reasons that creating this ethical code would be complicated and tenuous. But there are no good reasons not to implement one at all. Chief Justice Roberts and his colleagues on the Court know this, and they should act to remedy it—before the Court’s reputation is tarnished beyond repair.
Isaac Saul is the founder of Tangle, a politics newsletter that summarizes the best arguments from the right, left and center on the big debates of the day. You can sign up for free here.
A version of this article was originally published in Tangle.
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The best reason for the Supreme Court to not have a Code of Conduct is articles exactly like this one. The accusations of impropriety are implied and oblique. Accusations can be brought up by anyone who disagrees with anything the Supreme Court rules upon. Relying on phrases like "Avoid not only impropriety but the appearance thereof" puts all the power of accusations in the hands of those disaffected by rulings they don't like.
@TomB's point is correct. It's also worth pointing out that there's been a media campaign against the Court since the Trump appointments. It's more than a bit disingenuous to rail against the Court in public for a couple of years and then point to its low approval ratings in polls as proof that it needs to change.
If you've got a few minutes, here's an example I happened to come across:
On September 9th, the 'Times reported on a ruling by Justice Sotomayor in favor of Yeshiva University in its dispute with the YU Pride Alliance (https://www.nytimes.com/2022/09/09/nyregion/yeshiva-university-lgbt-sotomayor.html). The case itself isn't relevant here. What's relevant is that the 'Times included the following paragraph:
"Since Justice Amy Coney Barrett joined the court in 2020, petitioners in religious freedom cases have almost always prevailed there."
Now, three things are of interest here: The 'Times did not think to point out that Justice Sotomayor is perhaps the most progressive member of the Court; justice Barrett had nothing to do with this ruling and "petitioners in religious freedom cases have almost always prevailed there" since well before her appointment -- often with the concurrence of progressive justices.
So out of nowhere the 'Times -- in a 𝘯𝘦𝘸𝘴 piece -- has seen fit to imply that progressive justices are not swayed in their rulings by their philosophy (or if they are, that's okay), conservative/religious justices are (and that is 𝘯𝘰𝘵 okay) and the Court as a whole is now skewed towards religion at the expense of civil rights.
I'd like to think the 'Times has a code of conduct that this violated.