An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.Canon 1 of the Code of Conduct for United States Judges
The U.S. Supreme Court has never adopted nor been subject to a comprehensive code of judicial ethics.
H.R. 1 proposes to change that by requiring the creation of a code of conduct for United States Supreme Court justices. There is an existing Code of Conduct for judges serving on lower federal courts that sets forth simple rules, such as:
- No political activity (Canon 5)
- No fundraising (Canon 4)
- Avoid even “the appearance of impropriety” (Canon 2)
Alliance for Justice is a longtime advocate for a Supreme Court code of ethics. As over 100 law professors wrote in a 2011 letter spearheaded by AFJ: “[a]dherence to mandatory ethical rules by justices, and requiring transparent, reviewable recusal decisions that do not turn solely on the silent opinion of the challenged justice will reinforce the integrity and legitimacy of the Supreme Court.”
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.Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009)
Past instances of conduct by justices, many highlighted in a 2011 AFJ film, illustrate the need for this provision:
- Justices Scalia and Thomas attended at least one invitation-only retreat hosted by billionaire conservative activists Charles and David Koch. The purpose of the Koch retreats is overtly political. According to the invitation for the 2011 retreat: “Twice a year our network meets to review strategies for combating the multitude of public policies that threaten to destroy America as we know it.” It adds: “At our most recent meeting … our group heard plans … to activate citizens against the threat of government over-spending and to change the balance of power in Congress this November.” The first purpose of the event was to: “Attract principled leaders and investors who will effectively defend our free society.”
- Scalia went on a hunting trip with Dick Cheney at a time when Cheney had a matter pending before the Court.
- Justice Alito attended the American Spectator Magazine’s annual fundraiser gala in 2010 and headlined the event in 2008. The American Spectator runs the “Conservative Action Project,” a lobbying group dedicated to opposing President Obama’s agenda.
- Justice Gorsuch spoke at a luncheon at the Trump International Hotel. Ethics watchdogs rightly noted the apparent conflict of interest created when Gorsuch, a Trump nominee, keynoted an event at a hotel whose revenue goes to President Trump. Moreover, the event was hosted by the Fund for American Studies, funded by the Charles Koch Foundation and the Bradley Foundation, two groups that poured money into litigating against workers’ rights at the Supreme Court level. At the time of the Gorsuch event, the groups were supporting Mark Janus in Janus v. AFSCME.
- In ABC v. Aereo, the Court effectively shut down Aereo, a television streaming service, by holding that it violated the copyright of broadcasters. It was revealed that Chief Justice Roberts and Justices Alito and Breyer at the time owned considerable stock in Time Warner, which filed a friend-of-the-court brief supporting the broadcasters.