The Insufficiencies of the Supreme Court’s So-Called Code of Conduct

Just as the naked emperor sought acclaim for his new clothes, the justices have attempted to solicit public approval for a “Code of Conduct for Justices” that, likewise, does little to hide the contours of what lies beneath: a historically corrupt Supreme Court. The 14 pages show that the justices have no intention of changing their behavior or enforcing even the most basic tenets of legal ethics. The justices’ take on a code of conduct rewrites rules and precepts that lower federal court judges, staff, and clerks regard as sacrosanct.

The deviations from the ethics language the justices borrowed from the Code of Conduct followed by the lower federal courts are glaring.  Even the Roberts Court’s decision to append “for Justices” to “Code of Conduct” speaks to its intent to set different, subpar standards for itself compared to what other judges must follow.

Then there’s the fact that the “Code” kicks off with the claim that the Supreme Court “has long had the equivalent of common law ethics rules.” The claim that the Court has “long” obeyed a common law ethics code is simply not true. If it were, surely Chief Justice John Roberts would have mentioned that “common law” approach in his April 25, 2023, letter to the Senate Judiciary Committee defending the Court’s “approach to ethics matters.” What this statement actually boils down to is a direct admission from the Court that there’s nothing new about its “Code.”

“Should” vs. “Shall”

Take Back The Court President Sarah Lipton-Lubet and advisor Jamison Foser noted that the Code “uses the word ‘should’ 53 times and the words ‘shall’ and ‘must’ a combined total of only 6 times.” This distinction demonstrates the justices’ willingness to water down their own code despite there being robust examples to borrow from.

As Campaign Legal Center’s Roger Wieand spotted, the ABA’s model ethics code states that “a judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” The Supreme Court borrows this exact language from the model, but replaces “shall” with “should,” turning it from a requirement into a mere suggestion.

The “Knowingly” Excuse

The document’s most explicit loophole hangs on a single adverb: “knowingly.” It’s a red flag word in an ethics rule, full stop, because it allows ignorance to excuse unethical behavior. Its appearance only becomes more questionable when, as The Economist’s Steve Masie did, you line up the language of the Supreme Court’s “Code of Conduct for Justices” with the canons of the lower federal court’s Code of Conduct.

Canon 2(B), governing outside influence on judges on the lower federal courts, reads: “A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge.”

The Supreme Court’s version reads: “A Justice should not allow family, social, political, financial, or other relationships to influence official conduct or judgment. A Justice should neither knowingly lend the prestige of the judicial office to advance the private interests of the Justice or others nor knowingly convey or permit others to convey the impression that they are in a special position to influence the Justice.”

How would this affect Justice Clarence Thomas’s fondness for Koch Brothers fundraisers or his practice of letting the “elite” Horatio Alger Association use the Supreme Court for ceremonies? If he simply said he didn’t know better, it wouldn’t.

“Knowingly” pops up again in Canon 4, governing extrajudicial activities. See 4(A)(1)(d): “A Justice may attend a ‘fundraising event’ of law-related or other nonprofit organizations, but a Justice should not knowingly be a speaker, a guest of honor, or featured on the program of such event.”

Professor Leah Litman of Strict Scrutiny called it “a hall pass for the Federalist Society galas and Koch Network 501c3 and 501c4 [organizations].” The Nation’s Elie Mystal provided a Roberts Court-to-English translation: “And this is why the FedSoc gala is totally cool and very ethical for us to do.”

The Low Bar of “Reasonable”

Another word doing a lot of work for the Supreme Court’s code? “Reasonable.” For example, it states that justices are required to disqualify themselves when “the Justice’s impartiality might reasonably be questioned.” According to the Court, that’s “where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.”

The justices themselves are usually the only individuals who are aware of all relevant circumstances, and the problem justices — here’s looking at you, Roberts, Alito, and Thomas — appear biased in favor of hearing cases. Even when there is public scrutiny of a justice’s partiality — such as owning stock in a company with interests before the Court — justices have tended to ignore it. And, of course, there is no way of challenging the conclusions they reach for themselves by themselves.

Reasonability appears again in Canon 4(H), pertaining to compensation, reimbursement, and financial reporting. Here, justices are granted expense reimbursement based on “reasonably estimated costs of travel, food, and lodging reasonably incurred by the Justice and, where appropriate to the occasion, by the Justice’s spouse or relative.” The comparable provision governing lower court judges limits reimbursement to the “actual costs.”

Given the section’s sweeping subject matter, one suspects this is designed to invite justices to apply their own version of “reasonableness” to estimate the value of gifts and travel, affecting whether they need be reported. Recall that Justice Samuel Alito, for example, justified his acceptance of a luxury fishing trip to Alaska by arguing that his seat on Paul Singer’s private plane “would otherwise have been vacant” — an assertion that strains credulity, let alone reason.

Special Exceptions

Spouse-related concerns seem also to have driven a detailed deviation from the disqualification provisions otherwise borrowed from the Code of Conduct. In a provision derived from the Guide to Judiciary Policy, the Court specifies that for either a justice or their spouse to know (or know the spouse of) “an equity partner in a law firm that appears before the Court” is grounds for disqualification in a case unless the Court is provided with “written assurance that the income from Supreme Court litigation is permanently excluded from the person’s compensation.” Given the legal recruiting work that the wife of Chief Justice John Roberts has done for law firms with business before the Court, we might call this the Jane Roberts clause.

Midway through its section on disqualification we find the most obvious of the Court’s semantic machinations: a plain language loophole. Canon 3(B)(3) holds that ”The rule of necessity may override the rule of disqualification.” If this sentence sounds like it means whatever the justices want it to mean, that’s because that’s exactly what it means. The “rule of necessity” renders the Court’s supposed disqualification and recusal rules meaningless. Note that even the out-of-touch Roberts Court was self-conscious enough about building in this backdoor to dedicate almost a full page to rationalizing the supremacy of its ill-defined “rule of necessity,” applicable only to SCOTUS.

A Lack of Enforcement or Accountability

The justices’ code does little to address or correct for any of the major ethics concerns the Court is currently facing. Still, a justice could hypothetically violate the few rules that extend beyond mere suggestion. And what happens if they do? The document does not answer that. It provides no accountability or consequences from violating the code of conduct whatsoever.

Only on the penultimate page of the “code” does the Ethics in Government Act, which at least one justice is presently violating, make an appearance. Rather than being meaningfully addressed, it’s folded into a catch-all set of bullets detailing other authorities to which Supreme Court justices purportedly believe themselves subject. But neither the Constitution nor any of the other laws or regulations listed there speaks to any enforcement mechanism the Court has imposed upon itself. Because it hasn’t.

The final page of the document is surely the most ironic. There, the justices offer not a mechanism of enforcement but a bland note that the Court will use its staff to help them follow “best practices.” Like the rest of the document and defensive comments the justices have made in recent months, it speaks to an assertion that they are fit to govern themselves — despite all the evidence to the contrary.

A key portion of the lower courts’ Code of Conduct that doesn’t make an appearance? “A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.” Forecast: The Roberts Court will continue as usual, “Code” or no “Code,” and the justices whose misdeeds come to light will continue to complain about being exposed for their unethical and illegal behavior rather than rectifying it.

Rebecca Buckwalter-Poza is the Aron Senior Justice Counsel at Alliance for Justice.