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