Frequently Asked Questions About Judicial Ethics

The Code of Conduct & Justices’ Off the Bench Activities

• Why does this matter? 

The public must have confidence that the rulings of the Supreme Court are issued impartially and are free from politics and the influence of special interests.  To provide this assurance, Supreme Court justices must not participate in partisan political causes or fundraise on behalf of private interests. As NYU Law Professor Stephen Gillers observed, “If the public begins to believe that it’s not about the law, or that the justices are really politicians in robes, or what they do is politics in another form, their credibility will suffer.”  While this is true for all courts, protecting public confidence in the Supreme Court is of utmost importance, as its rulings have the broadest impact and are frequently divisive.  We must close the loophole that exempts Supreme Court justices from the same ethical rules all other federal judges must follow.

• Why doesn’t the Code apply to the Supreme Court?

The Judicial Conference, the administrative and legislative arm of the judiciary, has historically taken the position that it does not have authority over the Supreme Court (presumably because the Judicial Conference is comprised mostly of district court and court of appeals judges).  Two other sets of ethical rules passed by the Judicial Conference – concerning gifts and outside income – originally did not apply to the Supreme Court, but the Court voluntarily agreed to adopt them.  The Court can do so here as well by agreeing to bind itself to the Code of Conduct; if it does not act, Congress will need to take action.

• The film only addresses the conservative justices. Is the problem really limited to them?

AFJ’s research suggests that the conduct that raises issues under the ethical rules is generally limited to a few of the current justices.  The Code of Conduct prohibits all federal judges except Supreme Court justices from doing things like fundraising or participating in political activity.  Justices Thomas, Scalia, and Alito have all spoken at and allowed their names to be used to sell tickets to fundraising events. Justices Thomas and Scalia have attended overtly political meetings organized by the ultra-conservative Koch brothers. Actions like this clearly cross the bounds of acceptable conduct for judges. 

• Don’t judges frequently speak at events hosted by organizations like ACS, the Federalist Society, and the ACLU?  Is this against the rules? 

There is nothing in the ethical rules that prevents judges from speaking publicly.  In fact, the rules encourage judges to “speak, write, lecture, and teach on both law-related and non-legal subjects.” This includes speaking at organizations with a strong ideology, like the ACLU or the Federalist Society.  While judges are free to speak at panels, legal education programs, and similar events, the rules draw the line at speaking at fundraisers.  This blanket rule applies to fundraising for any organization, no matter how apolitical – opinions interpreting the Code make clear that judges cannot even fundraise for the Boy Scouts.  Engaging in political activity is also clearly off limits.  Aside from these constraints, which apply to all federal judges except Supreme Court justices, judges are free to engage with society.

• Is there enough evidence to warrant impeachment of Justice Thomas?

There are many troubling and unanswered questions about Justice Thomas that need to be answered.  Unfortunately, Justice Thomas has not been forthcoming with information and has often gone out of his way to conceal information.  He did not disclose attending a Koch Brothers political retreat, he appears to have failed to disclose trips taken with conservative activist Harlan Crow, and he ceased to report gifts on his disclosure forms after receiving negative press about the exorbitant amount of gifts received.  Perhaps most importantly, for over a decade he concealed his wife’s income from the Heritage Foundation and Rep. Dick Armey.  When this came to light, he claimed that he failed to report this information due to “misunderstanding” the form – an explanation that is hard to fathom considering the simplicity of the form, his high degree of legal training, and the fact that the Justice correctly filled out the forms as early as 1987 before he stopped reporting his spouse’s income in 1997. All of these examples force the question: what else might Justice Thomas be hiding?

Additionally, based on what we already know, it is clear that Justice Thomas could be subject to civil and possibly criminal action under the Ethics in Government Act – the law that requires most federal employees (including Supreme Court justices) to make certain financial disclosures, including the source of a spouse’s income.  The Act sets out the civil and criminal penalties for knowingly and willfully not disclosing required information, or making false disclosures. Because of the strong evidence that Justice Thomas knowingly and willfully concealed his wife’s income, the Judicial Conference and Department of Justice should take appropriate action against him under the Act.

Recusal & Conflicts of Interest

• Supreme Court justices have the highest authority in the judiciary – why shouldn’t they be able to decide for themselves when to recuse?

No person should be the judge in his or her own case. Yet this is exactly what Supreme Court justices get to do when deciding whether or not to recuse from a case.  When a lower court judge denies a motion to recuse, the decision can be appealed. But a Supreme Court justice’s decision on whether or not to sit on a case is final.  This is particularly problematic because, as the Supreme Court itself has recognized, it can be difficult to self-detect bias, or to recognize the possibility of the appearance of bias. Allowing Supreme Court justices to respond to their own recusal motions with no review or explanation of their decision erodes public confidence in the integrity of the Court and the sense that justice is being administered fairly.  AFJ is calling for a process to ensure review of a justice’s recusal decision.

• If reforms were adopted, who would decide whether a justice has to recuse?

There are several ways that an individual justice’s decision on whether or not to recuse from a case could be reviewed by someone other than the challenged justice. The justice’s decision could be reviewed by the remaining eight justices or by an advisory committee comprised of experts or federal judges. The recusal motion could even bypass the challenged justice and be decided by the full Court comprised of all nine justices.  Out of deference to the judiciary, the ethics reform legislation pending in Congress does not dictate a particular mechanism and allows the Judicial Conference to settle upon whatever solution it determines would work best.

• Can Congress really dictate when a Justice has to recuse?

Unlike the Code of Conduct, the recusal statute, 28 U.S.C. § 455, already applies to Supreme Court justices.  The statute requires a judge to step aside from a case if a reasonable person might question the judge’s impartiality.  For over 30 years, no one has questioned Congress’ authority to establish when a justice must recuse.  Congress likewise has the constitutional authority to ensure that the process by which a justice decides whether to recuse him or herself is itself conflict-free. 

• If Justices recuse more often, won’t there be more tied 4-4 decisions?

Some critics of reforming the Court’s recusal process have argued that if the recusal statute is rigorously enforced, there will be more 4-4 splits. However, 4-4 splits are extraordinarily rare. Research by Alliance for Justice shows that they occur in less than 6% of the cases where a justice recuses. Moreover, while a 4-4 split may not be a desirable outcome, a 5-4 split in which the allegedly biased justice casts the deciding vote is arguably much worse.  5-4 decisions are always controversial, but never more so than when the deciding vote is cast by a potentially biased justice. 

• We already know how many justices will rule in most cases, so why should their off the bench conduct affect their ability to hear a case?

When judges do nothing to dispel the belief that they are nothing more than “politicians in robes,” public confidence in a fair and independent judiciary suffers.  It is for this reason that many of the ethical rules that govern judges focus on avoiding even the appearance of bias or impropriety. The recusal law requires judges to recuse whenever a reasonable person might question his or her impartiality – actual bias is irrelevant. The Code of Conduct explains that judges should willingly embrace these restrictions and refrain from engaging in certain activities in order to protect public confidence in the judiciary.

Reforms

• Is this a new issue? 

No. There are several examples of Justices whose actions have raised ethical questions – and these examples have usually led to the adoption of ethics reforms.  For instance, Justice Fortas resigned from the bench after it was learned that he had received $15,000 in teaching fees from American University, and received $20,000 from conservative wealthy financier Louis Wolfson (who was later convicted for stock manipulation).  This scandal helped prompt the ABA and the Judicial Conference to adopt Codes of Conduct for judges.  Similarly, after Justice Rehnquist refused to recuse himself from a case challenging the constitutionality of a domestic surveillance program he had previously testified in support of as a government lawyer, Congress stepped in to amend the recusal statute. 

While these issues are not new, the questions of integrity hanging over the Court have reached a new level of gravity. From speaking at private fundraisers, to attending secret political retreats, to failing to disclose basic financial information, a handful of justices have repeatedly shown a seeming disregard for the ethical rules and the role they play in protecting public confidence in the Court.  This unfortunate trend of acting like they are above the law has not gone unnoticed, and calls for reforms are growing. 140 law professors have called for legislation to bring the Supreme Court under the same ethical rules as other judges, and over 100 members of Congress have spoken out on the issue.

• Is there anything Congress can do?  What about separation of powers?

The Constitution’s text and long historical practice make clear that Congress has the authority to legislate on matters affecting the Court, so long as the Court’s judicial function is not intruded upon.  The Framers knew Congress would have to exercise oversight of the Court, and specifically tasked Congress with doing so in a number of ways, such as delineating the Supreme Court’s appellate jurisdiction and setting the number of justices.  Congress has enacted other ethics rules like requiring judges to disclose their financial holdings, and mandating that judges recuse from cases when they have a conflict of interest. This sort of legislation is not viewed as an unconstitutional interference with the judicial function. Likewise, applying the Code of Conduct and requiring review of recusal decisions does not interfere with the Court’s core judicial function and would not run afoul of separation of powers.