Ethics and Professional Responsibility

ABA Calls on SCOTUS to Adopt a Code of Ethics

By Keith R. Fisher

At the ABA midwinter meeting in February, the House of Delegates adopted a resolution calling on the U.S. Supreme Court to develop and implement its own code of ethics. On May 9 ABA President Deborah Enix-Ross issued a statement to the same effect. The full text of that statement may be found here.

The House resolution further urged that such a code be “comparable to the Code of Conduct for United States Judges adopted by the Judicial Conference of the United States.”

That Code, which is largely based on the 1972 version of the ABA Code of Judicial Conduct, is not binding on Supreme Court Justices. Nevertheless, the Justices do consult it. Chief Justice Roberts in 2011 and Justice Kagan in 2019 publicly asserted that the Justices faithfully abide by the precepts of that code.

Certainly, from a purely public relations perspective, SCOTUS might be well-advised to give serious consideration to a very public adoption of a code of conduct. The constitutional perspective is different, however, as there is considerable doubt whether such a code can be externally mandated. For one thing, the Framers of the Constitution purposefully insulated the federal judiciary from political control, which suggests that for Congress to seek to impose an ethics code on SCOTUS would constitute an unconstitutional usurpation by the legislative branch of the authority of the co-equal judicial branch. Moreover, the language of Art. III, § 1 — “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” — suggests that while Congress, as creator of the “inferior” federal courts, ought to be able adopt (and has adopted) ethics rules for them, the Supreme Court is another matter, as it stands equal in dignity to Congress and owes its existence directly to the Constitution itself.

Exhortations such as those from the ABA come in the wake of current controversies over receipt of travel benefits by certain Justices. There is nothing new there, however. Similar allegations arose in the past in connection with travel by the late Justice Ginsburg and the late Justice Scalia.

Various individuals have expressed opinions during recent Senate Judiciary Committee hearings about whether Congress has the power to impose a code of conduct on SCOTUS or to require that the Justices adopt one. On April 23, Chief Justice Roberts declined an invitation to testify before that Committee, and in the process passed along a “Statement on Ethics Principles and Practices” that all the Justices have agreed to follow.

Questions about disqualification — usually under-disqualification but occasionally over-disqualification as well — have arisen in the past. The duck hunting episode involving Justice Scalia, and Justice Kagan’s participation in the Obamacare case, are perhaps the best-known examples. But the dynamics of recusal at SCOTUS is more complex than it is for other courts, where other judges can be substituted for those who are disqualified.

An ethics code might help to enhance the Court’s image. Yet it will do nothing to silence critics who claim that the Court is unduly political. No code of conduct can ever prevent judges — state or federal, appellate or trial — from allowing partisan or political considerations to influence their votes and opinions. That will always be a struggle for individual judges who strive to honor their oath of impartiality along with their professional experience and personal judicial philosophies.



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