The Supreme Court has recognized that ethical rules governing judges play a critical role in our democracy, holding in the recent Caperton v. A.T. Massey Coal Co. case that “these codes of conduct serve to maintain the integrity of the judiciary and the rule of law.”

The Court added: “Courts, in our system, elaborate principles of law in the course of resolving disputes. The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments. The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity is, in consequence, a state interest of the highest order.”

Accordingly, federal judges are required to abide by the Code of Conduct for United States Judges3– a set of ethical guidelines codified and enforced by the U.S. Judicial Conference. Unfortunately, the Code of Conduct covers every federal judge except the justices of the Supreme Court. While the justices apparently look to the Code of Conduct for “guidance,” at present the justices enjoy complete discretion to interpret – or ignore – its guidelines and to decide what extrajudicial activities are appropriate.

The policy advanced by the Code of Conduct – to protect public confidence in the judiciary – applies equally, if not in greater force, to members of the highest court in the land. Their decisions have the broadest impact, are frequently divisive, and can turn on the vote of a single justice. They also face the most public scrutiny. Supreme Court justices should therefore not be allowed to conduct themselves independent of ethical constraints. Given the allegations of misconduct by Supreme Court justices discussed below, a voluntary system of adherence to ethical guidelines – where each justice serves as his or her own judge – has proved insufficient.