The Supreme Court recently promulgated a Code of Conduct, which has several commendable aspects. It closely resembles the Code of Conduct for U.S. Judges, sharing the same structure, five canons, and provisions. Some rules have been omitted, such as those concerning the duty to afford litigants their full right to be heard according to law, as they are more relevant to lower courts.
It is unfair to label the new code as toothless due to the absence of an enforcement mechanism.
Like the ABA Model Code, it cross-references disciplinary processes and highlights the role of codes within them. The lack of a disciplinary process for the Supreme Court is not a flaw of the code itself.However, there are discrepancies between the SCOTUS Code and the Code of Conduct for U.S. Judges. While the latter emphasizes maintaining and enforcing high standards of conduct, the SCOTUS Code omits any duty to take action in response to known code violations by other justices.
This omission may preserve collegiality but undermines confidence in the court’s commitment to its code.The new code also lacks a duty to be faithful to the law, as required by Canon 3(A)(1) of the Code of Conduct for U.S. Judges. This duty is distinct from the obligation to respect and comply with the law, focusing on upholding and applying the law in case decisions. For justices criticized for ideological, partisan-seeming decision-making, the absence of this duty is unfortunate.
Most controversial are the SCOTUS Code’s modifications to disqualification rules, aligning with the court’s submission to the Senate Judiciary Committee. While federal law imposes disqualification requirements on the Supreme Court, the new SCOTUS Code presents them as recommendations rather than mandatory obligations.
The SCOTUS Codes disqualification provisions introduce new language that presumes a Justice to be impartial, aligning with precedent but seemingly misplaced in a code guiding judges on ethical responsibilities.
The subsequent clause in the same sentence states that a justice is obligated to sit unless disqualified, a point already made in the previous section regarding participation in assigned matters. This repetition underscores the court’s ongoing interest in reviving the duty to sit, despite Congress’s attempt to abolish it in 1974.
The new SCOTUS Code interprets the statutory duty to disqualify when a justice’s impartiality might reasonably be questioned. It specifies that an unbiased and reasonable person, aware of all relevant circumstances, would doubt the Justice’s ability to fairly perform their duties. This is consistent with interpretive precedent but omits the guidance that the reasonable person is not a judge but an outside observer, less likely to credit the judge’s impartiality. Additionally, the new SCOTUS Code introduces the rule of necessity, which may override the rule of disqualification. This is consistent with precedent, but the court’s commentary suggests that the rule of necessity minimizes the need for tie votes. The rule implies that when all are disqualified, none are, allowing judicial review to take precedence over disqualification. However, implying that the rule of necessity supports non-disqualification on the Supreme Court due to the need for all nine justices to participate is concerning. It risks allowing a justice with questionable impartiality to cast a decisive vote in a 5-4 case. The effectiveness of the SCOTUS Code in reducing controversies over justices’ conduct hinges on the court’s seriousness about adopting the new code. The omission of extensive commentary from the Code of Conduct for U.S. Judges, which provides crucial ethical guidance, is not encouraging. The preamble to the new SCOTUS Code also lacks confidence-inspiring language, merely summarizing ethical restrictions that the court has long followed and attempting to dispel misconceptions to the contrary.In contrast to the disheartening claim that the underlying purpose is to deflect criticism, the SCOTUS Code of Conduct concludes on a more constructive note. It outlines the steps the court is taking and intends to take to provide guidance and training on recurring ethics and financial disclosure issues.
These mixed messages reveal an ongoing internal tension within the court regarding the boundaries of Supreme Court exceptionalism and how its justices view their role in relation to the broader American judiciary. Posted in What’s Happening Now Recommended Citation: Charles Geyh, The new SCOTUS Code of Conduct, SCOTUSblog (Nov. 24, 2023, 12:00 AM), /2023/11/the-new-scotus-code-of-conduct/
