The justices have published rules restating and refining their ethical obligations. They will get no thanks for doing it.
The justices have published rules restating and refining their ethical obligations. They will get no thanks for doing it.
I n politics, one of the hardest decisions is whether to do something you think is right when it’s being demanded by the wrong people for the wrong reasons as part of a campaign to accomplish the wrong ends. That’s where the Supreme Court has found itself in the debate over publishing a code of ethics for the justices. Today, the Court did so. It will get no credit for this from its critics, but the code is a positive step and one that deprives them of a bad-faith talking point. It makes it easier for members of the public and the bar to review in one place the standards that the justices hold out as governing their own behavior. It makes it harder for Congress to justify enacting legislation that would impose a code of dubious constitutionality.
The well-financed campaign to paint the conservative justices (and only them) as unethical is only one prong of a wider effort to intimidate and/or discredit the Court and its justices by physical protest, threats of violence, smears, and proposals to restructure the Court. Nonetheless, it has had an effect because members of the public who don’t follow the Court closely just keep hearing that the justices not only are acting unethically but are also not subject to any rules.
That was always nonsense. Recusal for conflicts of interest, for example, is not only governed by a federal statute that applies to the justices but also illuminated by the Court’s own precedents in written opinions and, in at least one case, a joint letter by several members of the Court regarding the standards to apply when a relative of a justice practices law with a firm that has business before the Court.
The justices are also bound by rules governing financial disclosures. Indeed, examination of those disclosures has provided the basis for a lot of the complaints about the sorts of gifts and hospitality the justices accept. Those rules have expanded over time to require more detailed disclosures of, say, travel provided by friends. While a number of the justices have had to amend and correct disclosures at times, there is no real question that they have made a diligent attempt to comply with this onerous paperwork requirement on top of their many other responsibilities.
Standing in the Sunlight
There is no mistaking the tone of irritation in the statement accompanying the announcement of the code of ethics, which was signed by all nine justices:
The undersigned Justices are promulgating this Code of Conduct to set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the Members of the Court. For the most part these rules and principles are not new: The Court has long had the equivalent of common law ethics rules, that is, a body of rules derived from a variety of sources, including statutory provisions, the code that applies to other members of the federal judiciary, ethics advisory opinions issued by the Judicial Conference Committee on Codes of Conduct, and historic practice. 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. [Emphasis added]
The code runs 14 single-spaced pages divided into five canons of conduct (with a variety of sub-parts) and incorporating a five-page commentary focused mainly on recusal issues. Some of it outlines general principles, such as this:
A Justice should not allow family, social, political, financial, or other relationships to influence official conduct or judgment. A Justice should neither knowingly lend the prestige of the judicial office to advance the private interests of the Justice or others nor knowingly convey or permit others to convey the impression that they are in a special position to influence the Justice.
In other words, don’t do what Joe Biden has done by talking to his son Hunter’s business partners in order to convey that investing with Hunter gets you pull with Joe. This is, in an additional irony, followed by a ban on belonging to “any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin” — perhaps a veiled shot at Sheldon Whitehouse and his all-white beach club. And there is also what looks like a shot at anyone sheltering the Dobbs leaker: “A Justice should take appropriate action upon receipt of reliable information indicating the likelihood of misconduct by a Court employee. . . . A Justice should not direct Court personnel to engage in conduct on the Justice’s behalf or as the Justice’s representative when that conduct would contravene the Canons if undertaken by the Justice.”
The code itself proclaims that the justices should not bend in the wind — even as its very issuance suggests otherwise: “A Justice should not be swayed by partisan interests, public clamor, or fear of criticism.” It also urges the justices to not approach ethics rules as if they demand monastic vows: “Lower court canons encourage public engagement by judicial officers to avoid isolation from the society in which they live and to contribute to the public’s understanding of the law.”
Gifts, Friends, and Recusals
As far as accepting gifts is concerned, the code mostly restates that the justices are governed by the Judicial Conference Regulations on Gifts. The code bars family members from accepting any gift the justice could not, and it extends to “any member of the Justice’s family residing in the household,” defined to include “any relative of a Justice by blood, adoption, or marriage, or any person treated by a Justice as a member of the Justice’s family.” That is fairly clearly written to cover, going forward, the potentially ambiguous situation of Justice Clarence Thomas’s grandnephew, who was raised by Thomas as if he were his own son, and whose tuition was paid by Harlan Crow. Under the new rule, it is clear that Thomas could accept such a gift to his grandnephew only if he believed that he could accept it himself. The rule would not, however, apply to Thomas’s elderly mother, who does not live with him.
On the question of outside activities by the justices, the code reaffirms that they can continue to do things like teach, write books, and give lectures but cautions that “a Justice should not participate in extrajudicial activities that detract from the dignity of the Justice’s office, interfere with the performance of the Justice’s official duties, reflect adversely on the Justice’s impartiality, lead to frequent disqualification, or violate the limitations set forth” in specifics of the code.
The code treats different types of causes differently. Thus, on the one hand, the justices should not participate in meetings of a group that “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,” but the code gives more latitude for the justices to speak “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.”
The justices are even allowed to serve on the board of “a nonprofit organization devoted to the law, the legal system, or the administration of justice and may assist such an organization in the management and investment of funds.” Moreover, “a Justice may make recommendations to public and private fund-granting agencies about projects and programs concerning the law, the legal system, and the administration of justice.” Frankly, this is a broader permission than I might have considered appropriate under existing rules. A similar permission is extended for “a nonprofit civic, charitable, educational, religious, or social organization,” but this permission unlike the prior one is subject to cautions against such involvement with a group that is likely to be involved in cases before the Court.
The recusal rules adopted by the Court mostly restate the governing federal statute, with the addition of points made previously by the justices, such as the particular “duty to sit” that sets a higher bar for recusals than applies to lower-court judges who are more easily replaced, and the letter issued by seven justices in 1993 on law practice by relatives. The commentary specifically cites with approval not only the 1993 letter but also Justice Antonin Scalia’s opinion on non-recusal in a case involving Dick Cheney (with whom he had gone on a hunting trip) and Chief Justice William Rehnquist’s opinion on non-recusal in a case involving Microsoft, which his son was representing in other litigation. The Court also notes that the justices need not recuse when they would be affected simply by virtue of the vast and varied scope of general laws and financial programs (it cites, as an example, student loans) whose validity the Court often examines.
One signal defeat for critics of Justice Thomas is that the Court emphatically rejected the argument that the justices should recuse from a case in which they may have a relationship not with any party to the case but to an amicus:
In contrast to the lower courts, where filing of amicus briefs is limited, the Supreme Court receives up to a thousand amicus filings each Term. In some recent instances, more than 100 amicus briefs have been filed in a single case. The Court has adopted a permissive approach to amicus filings, having recently modified its rules to dispense with the prior requirement that amici either obtain the consent of all parties or file a motion seeking leave to submit an amicus brief. In light of the Court’s permissive amicus practice, amici and their counsel will not be a basis for an individual Justice to recuse. [Emphasis added]
Thus, the Court apparently saw no problem with Ginni Thomas’s having been involved with a group that filed an amicus brief in Trump v. Hawaii, or with Justice Sonia Sotomayor’s sitting on numerous cases for which amicus briefs were filed by the Puerto Rican Legal Defense and Education Fund, now known as LatinoJustice PRLDEF, on whose board she sat for a dozen years.
An Independent Branch
The Court notes only a few issues that may require it to do better, flagging in particular that “some district courts and courts of appeals have deployed software to run automated recusal checks on new case filings.” Regarding this, “the Court will assess whether it needs additional resources in its Clerk’s Office or Office of Legal Counsel to perform initial and ongoing review of recusal and other ethics issues.” It will also “consider whether amendments to its rules on the disclosure obligations of parties and counsel may be advisable.” This suggests that the justices were stung by arguments that Thomas and Justice Samuel Alito should have recused in cases where it may not have been entirely clear from a certiorari petition whether Crow or another friend had an interest in a case that the Court never heard on the merits.
What will likely sting the critics is that there is no provision for any of this to be enforced by anybody else short of impeachment by Congress or criminal prosecution in an extreme case (such as that of a justice who accepts bribes). But the same can be said of the Senate and the House: They are responsible for the discipline of their own members. True, the justices (unlike members of Congress) have life tenure, don’t face reelection, and are part of a body too small to do much to discipline a rogue member even if a majority thinks it appropriate. But a justice who loses the respect of his or her colleagues has already lost much of his or her power.
At the end of the day, an independent judiciary is supposed to be independent, and the Supreme Court is supposed to be supreme within that system — so long as nobody crosses the sorts of lines that, for instance, led Abe Fortas to resign in disgrace. There is something poignant — and probably intentionally so — in the Court’s choice of an authority to cite on this point:
In urging the judiciary to promulgate and adopt what became the lower court Code, Justice Tom C. Clark observed shortly after his retirement from the Supreme Court that judges “must bear the primary responsibility for requiring [appropriate] judicial behavior.”
Justice Clark retired from the Court because Lyndon Johnson appointed his son as attorney general and Clark felt that it was inappropriate to continue to serve on the Court when his own son would be a frequent institutional litigant. Johnson, in fact, picked Ramsey Clark as his attorney general as a strategic move to get his father to retire. That stands as an object lesson of how the abuse of the Court’s ethics by outsiders can alter the decisions of the justices. Today’s decision will be a good one if it helps fortify the justices against such abuses going forward.