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The Supreme Court was guilted into adopting an Code of Conduct

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The Supreme Court was guilted into adopting an Code of Conduct

It's more of a pledge, though, as there is no apparent enforcement mechanism. But, it is a first step — and a reminder that public pressure works.

Chris Geidner
Nov 13, 2023
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The Supreme Court was guilted into adopting an Code of Conduct

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On Monday, the justices of the U.S. Supreme Court announced, with Supreme Court opinion-esque letterhead and all, that it had adopted a “Code of Conduct for Justices of the Supreme Court of the United States.”

Although all nine justices — including Justice Clarence Thomas, who has faced significant questions about his friendships and the work of his wife, and Justice Sam Alito, who has faced questions about his friendships and whether he would recuse himself from a case set to be argued on Dec. 5 (he said no) — signed the code, it isn’t much of a “code.”

What the justices announced on Monday is more of a pledge, given that it is lacking any apparent enforcement mechanism.

It also — likely as a way of getting all nine justices on board — included an introductory statement claiming that the reason for doing this is because “[t]he absence of a Code … 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.” The statement then repeats the “misunderstanding” language, concluding, “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.”

This is ridiculous, and the justices know that it’s ridiculous, or we wouldn’t be here right now.

However they want to frame it, the justices announced their own Code of Conduct.

It is a step forward. A first step that should stop neither Senate Judiciary Committee subpoena efforts nor other legislative ethics efforts, but a step.

For the first time in its history, the nine justices of the Supreme Court have adopted a code of ethics. In doing so, they have acknowledged that the public rightfully has expectations that they will behave in an ethical way.

It’s a low bar, perhaps, but it matters.

Holding public officials accountable matters because even when they clearly don’t want to act, public pressure can force their hand. And, while what we got was a wet-noodle, unenforceable scout’s pledge on Supreme Court stationary, it’s something.

Yet again — as with Thomas’s years-later corrected financial disclosure and Alito’s four-page explanation of why he doesn’t plan to recuse himself from Moore v. U.S. — pressure works if for no other reason than that it can get officials on the record who otherwise would have taken questionable actions without even so much as a regard to the thoughts of the public.

In other words, pressure can lead to action, and action leads to greater awareness of the underlying issue.

So, with those important caveats and overarching thoughts about Monday’s developments …

What have the justices have agreed to in the new code?

In many ways, the “canons” announced on Monday largely track the existing Code of Conduct for Federal Judges.

In the Supreme Court version, here’s Canon 1:

CANON 1: A JUSTICE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY. A Justice of the Supreme Court of the United States should maintain and observe high standards of conduct in order to preserve the integrity and independence of the federal judiciary.

This first canon is virtually the same in substance as the canon applicable to other judges.

The second canon largely tracks the judges’ canon, with one substantive distinction:

Canon 2B adds the word “knowingly” — twice — to the provisions warning against “lend[ing] the prestige of the judicial office to advance the private interests of the Justice or others” or “convey[ing] or permit[ting] others to convey that they are in a special position to influence the Justice.”

Canon 3 addresses recusal, which — as Chief Justice John Roberts has said previously — is different at the Supreme Court due to the fact that, under current rules, no one can replace a recused justice. There is, as it is referred to, a duty to sit. As I’ve written previously, however, the “duty to sit” is misused by the current court to excuse sitting when recusal is called for as opposed to being a reason why a justice shouldn’t recuse when it is not called for.

CANON 3: A JUSTICE SHOULD PERFORM THE DUTIES OF OFFICE FAIRLY, IMPARTIALLY, AND DILIGENTLY.

Unfortunately, Monday’s Supreme Court Code of Conduct reinforces that misapplication of the “duty to sit,” repeatedly claiming — now in an agreed-upon code — that recusal is virtually never called for.

Canon 3B(1) establishes the duty to sit, and Canon 3B(2) establishes recusal standards.

B. DISQUALIFICATION. (1) A Justice is presumed impartial and has an obligation to sit unless disqualified. (2) A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, 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. Such instances include, but are not limited to, those in which:

Several scenarios — including bias, prior representation, financial interests, family involvement, prior government employment — are laid out.

Notably, the Supreme Court’s code only states that a justice “should” recuse. In the federal judges’ code, it states that “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned ….”

However, Canon 3B(3) essentially obviates even that lessened “should” standard:

(3) The rule of necessity may override the rule of disqualification.

Canon 3B(4) establishes a huge recusal exception:

(4) Neither the filing of a brief amicus curiae nor the participation of counsel for amicus curiae requires a Justice’s disqualification.

Additionally, Canon 3B(6)(a) limits the family recusal by defining which relationships would be covered, and Canon 3B(6) adds an exception to financial recusal by allowing participation if the interest that would lead to disqualification is divested.

Canon 4 is the catch-all canon with lots of items:

It includes sections on “law-related activities,” “civic and charitable activities,” “fundraising,” “financial activities,” “fiduciary activities,” “governmental appointments,” “chambers, resources, and staff,” and “compensation, reimbursement, financial reporting” — which tracks the judges’ code.

In the first section — Law-Related Activities — there are subsections, and the first of those is “Speaking, Writing, and Teaching.” Here, the justices’ code adds “the following limitations and considerations”:

(a) A Justice should not speak at an event sponsored by or associated with a political party or a campaign for political office. (b) A Justice should not speak at or otherwise participate in an event that promotes a commercial product or service, except that a Justice may attend and speak at an event where the Justice’s books are available for purchase. (c) A Justice should not speak to or participate in a meeting organized by a group if the Justice knows that the group has a substantial financial interest in the outcome of a case that is before the Court or is likely to come before the Court in the near future. (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. In general, an event is a “fundraising event” if proceeds from the event exceed its costs or if donations are solicited in connection with the event. (e) In deciding whether to speak or appear before any group, a Justice should consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public. Except in unusual circumstances, no such appearance will be created when a Justice speaks to a group of students or any other group associated with an educational institution, a bar group, a religious group, or a non-partisan scholarly or cultural group.

Given what we know and, specifically, have learned over the past year, it’s important to focus on the “may” provisions — which, again, are not a part of the judges’ code — as they are effectively blessing participation in such events for purposes of the justices saying going forward that they are adhering to their unenforceable code of conduct.

Additionally, in the “Financial Activities” section, the justices eliminated the following provision contained in the judges’ code when they crafted their code:

(3) As soon as the judge can do so without serious financial detriment, the judge should divest investments and other financial interests that might require frequent disqualification.

Roberts and Alito owned private stock (here’s Fix the Court’s tracker) as of their most recent disclosures and, it would appear, have no intent to sell it — given that they’re unwilling even to include such a loose standard for divestment.

Finally, Canon 5 says the justices should not engage in direct political activity, like making speeches or endorsing a candidate, and is virtually the same as the judges’ code.

CANON 5: A JUSTICE SHOULD REFRAIN FROM POLITICAL ACTIVITY.

Much more on this to come, to be sure, but that’s the top-line read from me of Monday’s code development.

This story was expanded after initial publication, with the final update at 6:35 p.m.

Law Dork with Chris Geidner brings you independent, in-depth legal and political journalism that seeks to hold government and other public officials accountable. Support this reporting by becoming a paid or free subscriber today.

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The Supreme Court was guilted into adopting an Code of Conduct

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Chris Geidner
Nov 14Pinned

OK, many folks disagree with this. First: If I had it to do over again, I would have added in part of the subhead somehow into the headline — about the unenforceability — to make absolutely clear everywhere that I don't think this is sufficient. But, obviously, the piece from the subhead forward makes that clear.

The bottom line is: Go for it, keep pushing the court. I will, likely within days. I'm not saying this is good; I explicitly say it's not sufficient. But, I don't think it's meaningless. I think saying it is gives in in a way that is not helpful to holding the court accountable.

Even an unenforceable code isn’t meaningless. They blinked. It’s an admission against interest. Use it. This is an institution that refused live audio until a global pandemic! This movement from the court — as small as it is — is due to reporting and advocacy and public pressure. It’s a crack that shows — despite Alito's whining — how reasonable (and effective) the reporting and advocacy about the court's ethics failures have been.

I'm not sure why those seeking to reform the court or those seeking to hold the court accountable wouldn't take this as the clear win it is — the court, fundamentally, did not want to acknowledge this, and yet, on Monday, the justices did — and use it to keep pushing for more.

There will be reporting — here and elsewhere (including above) — about how insufficient or outright bad some of the specifics are. There will be reporting on how this could be used as an excuse to "clear" certain questionable behavior — and how certain other behavior wouldn't even meet this low bar. It gives us something to use. And yes, as someone noted in comments, someone should redline this to craft what they view as a better goal for a code of conduct.

I see this as a tool for moving forward, and, again, an admission against interest — not a solution in any way. In any event, I do appreciate the pushback! Come for me when you think I'm wrong; it keeps me on my toes, helps me think through my thoughts, and sometimes gets me to change my views.

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John D. Hackensacker III
Nov 14Liked by Chris Geidner

For the time being, the enforcement mechanism is us. Keep pushing, you all.

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