The Washington Post reports that the Supreme Court “has failed to reach consensus on an ethics code of conduct.” That’s hardly a surprise, as the matter is a lot more complicated than many critics acknowledge.
Judicial-ethics expert Russell Wheeler of the liberal think tank Brookings has forcefully argued that the “absence of formal review mechanisms for justices’ ethical decisions is a necessary imperfection in the system” and that proposals to correct that imperfection “would likely create more problems than they would solve.” Perhaps he’s mistaken, but, as I explained some years ago, a proposal earnestly offered by a group called Fix the Court (which, as WaPo puts it, “has long advocated for greater accountability and transparency at the court”) “offers ill-considered solutions to a supposed problem that it has poorly defined and hasn’t demonstrated.”
According to WaPo, the American Bar Association contends that “the absence of a clearly articulated, binding code of ethics for the justices of the Court imperils the legitimacy of the Court.” But this contention rests on the false premise that the Code of Conduct for United States Judges is “binding” on lower-court judges. As Wheeler has been explaining for a long time, the Code of Conduct itself says only that it “is designed to provide guidance to judges.” It acknowledges that many of its provisions “are necessarily cast in general terms, and judges may reasonably differ in their interpretation.”
Further, the Judicial Conference of the United States, in its Rules for Judicial-Conduct and Judicial-Disability Proceedings, says that the “main precepts” of the Code of Conduct are “highly general” and that the Code “is in many potential applications aspirational rather than a set of disciplinary rules.” As Wheeler puts it, the Judicial Conference’s rules “explicitly reject the position that a Code [of Conduct] violation is, per se, a ground for finding misconduct.”
Those who think that having the Code of Conduct formally apply to Supreme Court justices would be an improvement might want to explain what difference it would have made if the Code of Conduct had formally applied to them over the past several decades. Federal statutory law already imposes (and has long imposed) exactly the same recusal obligations on a Supreme Court justice that it imposes on a lower-court judge, including the obligation to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The recusal provisions in the Code of Conduct mirror the federal statute.
The apparent assumption that the Code of Conduct is some sort of great success for lower-court judges is also dubious at best. Lower-court judges make their own decisions whether or not to recuse, and, as Wheeler explains, you are not permitted to file a complaint of judicial misconduct with respect to a decision not to recuse. So you have no recourse against even flagrant non-recusals (such as the appellate judge who declined to recuse himself from a case in which the group his wife led had filed amicus briefs in the district court and in which his wife had publicly celebrated the very ruling under review).
On the downside, the Code of Conduct exposes federal judges to all sorts of abusive complaints. Take, for example, Demand Justice’s outrageous attack on then-D.C. Circuit judge Thomas Griffith. When Griffith decided to retire in order to care for his very ill wife, Demand Justice instead baselessly alleged that he might be stepping down in exchange for a bribe. It’s all too telling that Demand Justice is clamoring for Congress to enact a law governing Supreme Court ethics.