In 2019, Justice Elena Kagan testified before a House subcommittee, discussing the Supreme Court’s budget and mentioning that Chief Justice John Roberts was considering a code of conduct for the justices. Fast forward to 2023, and following revelations about undisclosed luxury travel by some justices, all nine judges have signed a code of conduct. This code largely mirrors an existing one for other federal judges but has been criticized for lacking an enforcement mechanism.
The debate over an ethics code for the Supreme Court is not new. In 2011, Chief Justice Roberts opposed the idea, arguing against the adoption of an ethics code or adherence to the code for other federal judges. However, the calls for an ethics code have grown stronger this year, especially after ProPublica’s April 6 report on Justice Clarence Thomas’s undisclosed luxury travel, funded by a Republican donor.
Thomas later claimed the trips were personal hospitality and that he was advised not to disclose them.ProPublica also reported that Justice Samuel Alito failed to disclose a 2008 fishing trip to Alaska, paid for by billionaire Paul Singer, whose hedge fund appeared before the court multiple times after the trip. Alito did not recuse himself from related cases.
In response to these revelations, Sen.
Richard Durbin, chair of the Senate Judiciary Committee, invited Roberts to discuss Supreme Court ethics rules and potential reforms. Durbin highlighted the court’s failure to address ethical shortcomings, which has led to a crisis of public confidence.Roberts declined the invitation, citing concerns about judicial independence and the separation of powers. He attached a Statement on Ethics Principles and Practices to his letter, signed by all justices, which acknowledged the code of conduct for other federal judges as part of their ethical framework but noted its generality and unsuitability as enforceable rules.
Throughout the summer and fall, several justices, including Kagan, Amy Coney Barrett, and Brett Kavanaugh, expressed support for an ethics code during public engagements.
In July, the Senate Judiciary Committee voted to advance a bill requiring the court to adopt an ethics code. This move was somewhat unexpected when, with little fanfare, the Supreme Court released its ethics code on Monday afternoon.
Accompanying the code, the justices clarified that the rules within are not new but are a codification of principles they have long regarded as governing their conduct. The absence of an ethics code had led to a misunderstanding that the Justices were unrestricted by any ethics rules, which this new code aims to dispel.
The Supreme Court’s code is largely derived from the conduct code for other federal judges but has been adapted to fit the unique institutional setting of the Supreme Court. This adaptation is crucial, especially concerning when justices should recuse themselves from a case, as there is no replacement for a recused justice, which can impact the judicial process. The code of conduct specifies certain circumstances under which justices should recuse themselves, such as personal involvement in the case. However, it generally leaves the decision to the individual justices and does not mandate an explanation for recusal. Moreover, the code lacks any enforcement mechanism. The commentary on enforcement is vague, quoting the late Justice Tom C. Clark’s view that judges bear the primary responsibility for judicial behavior and outlining potential steps the court might take to assist justices in compliance. At least one advocacy group, pushing for transparency at the Supreme Court, expressed dissatisfaction with the court’s ethics code. Gabe Roth, the executive director of this nonpartisan group, criticized the code as a mere copy of lower court codes, failing to account for unique Supreme Court circumstances. Senator Sheldon Whitehouse (D-R.I.) echoed these concerns, stating that without an enforcement mechanism, the code of ethics remains non-binding. He argued that the honor system has not been effective for the Roberts Court.This article was originally published at Howe on the Court.
Justices have issued an official code of conduct. Posted in What’s Happening Now. Recommended Citation: Eric, Justices issue official code of conduct, SCOTUSblog (Nov. 13, 2023, 12:00 AM), /2023/11/justices-issue-official-code-of-conduct/
