It’s about damn time, as Lizzo would say.
On November 13, the Court released its first published ethics code. This came after a series of “exposés” alleging ethical lapses by justices, a sustained campaign from groups like Fix the Court and Alliance for Justice agitating for reforms, and a 2021 report from the Presidential Commission on the Supreme Court recommending the adoption of a formal code of conduct.
The justices explained that most of the Code of Conduct is not new and reflects the “common law ethics rules” that have developed over many decades. Clapping back on the haters, the justices (all nine of them!), wrote:
“The absence of a Code, however, has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules. To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct.”
Your move, haters.
The Code of Conduct has five canons, which I’ll summarize briefly.
1. Uphold the independence and integrity of the judiciary.
This one is self explanatory.
2. Avoid impropriety or the appearance of impropriety.
In other words, don’t break the law and don’t let relationships (family, social, political, financial, or “other”) influence official conduct.
3. Perform duties fairly, impartially, and diligently.
This section starts with the admonition that justices “should not be swayed by partisan interests, public clamor, or fear of criticism.” They should hold their clerks and staff to the same standards and “take appropriate action upon receipt of reliable information indicating the likelihood of misconduct by a Court employee.” (a nod to the Dobbs opinion leak??)
Recusal is called for if an “unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” There’s a non-exhaustive list of examples. Participation in a case at an earlier stage is one instance. This comes up from time to time for justices who were promoted from the appeals courts (eight out of nine were), and Justice Kagan’s service as Solicitor General in the Obama Administration also led to recusals.
Having a financial interest at stake in a case is another example, though a justice can divest from those investments and eliminate the need to recuse. Justice Alito took that path in 2016 after years of recusing in cases involving Exxon Mobile.
Get ready for six degrees of Kevin Bacon with this next example. It recommends recusal when a justice or his or her spouse “or a person related to either within the third degree of relationship, or the spouse of such person, is known by the Justice” to be a party before the Court or officer, trustee, or director of a party; lawyer representing a party; or someone with an interest that could be substantially affected by the outcome. For example, Justice Thomas recused himself from United States vs. Virginia, an equal protection case challenging VMI’s male-only admission, because his son was enrolled at the school.
The third degree of relationship extends to parents, children, grandparents, grandchildren, great grandparents, great grandchildren, siblings, aunts, uncles, nieces, and nephews (whole and half blood relatives and most step relatives). Note: this applies to parties before the Court, not groups that file amicus briefs.
Since the Court can’t simply sub in another justice, as occasionally happens in lower courts, the “rule of necessity may override the rule of disqualification.”
4. Some extrajudicial activities are allowed.
This covers a lot of ground: the justices’ ability to speak, write, lecture, and teach, and be paid for those activities. They’re also allowed to serve as non-legal advisors and board members of nonprofit organizations (limited to groups that aren’t likely to appear before the Court, so my employer is out of luck!), hold investments and real estate, appear before an executive or legislative body to advise on matters concerning the legal system, and act as executor or administrator of family members’ estates or trusts.
They’re allowed to attend fundraising events for nonprofit organizations, but they “should not knowingly be a speaker, a guest of honor, or featured on the program.” No participation in an event promoting a commercial product – unless that product is a justice’s book. (The justices gotta eat!)
They’re allowed to assist nonprofit organizations with fundraising plans. They may be noted by those organizations as an officer, director, etc., but they should not “use or knowingly permit the use of the prestige of judicial office” for fundraising or membership solicitation.
5. Refrain from political activity.
This covers holding an office in a political organization, stumping or raising funds for candidates, and running for political office. It may sound like a no-brainer but in the not-too-distant past, justices were not cloistered in their marble palace but had a revolving door with the political branches.
John Jay, the very first Chief Justice, ran for Governor of New York in 1795 while serving on the Court (he resigned to take the new job). John McLean sought the presidential nomination of four different parties over the course of his 32 years on the Court, earning the nickname “the Politician on the Supreme Court."
David Davis left the Court in 1877 to represent Illinois in the U.S. Senate (!!!); Charles Evans Hughes resigned from his associate justice post in 1916 to accept the Republican presidential nomination, returning as Chief Justice fourteen years later. William O. Douglas actively sought the VP slot on Democrat’s 1944 presidential ticket, ultimately settling for the distinction of being the longest-serving justice.
Today it’s hard to imagine a politician being nominated to the Court, but many justices came directly from state and federal posts. Earl Warren was Governor of California before being tapped to serve as Chief Justice in 1953. And scores of justices came from the U.S. House of Representatives and Senate.
But I digress.
The Court’s critics are already pointing out there’s no way to enforce the Code (they are Supreme after all) and that it has more (loop) holes than Swiss cheese.
Will the newly-announced Code of Conduct satisfy those who have been clamoring for reform, or have the justices broken a cardinal rule of the internet?
Don’t feed the trolls.
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