The Supreme Court has today issued a Code of Conduct that aims “to set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the Members of the Court.” As the nine justices explain in their joint introductory statement, the Code “largely represents a codification of principles that we have long regarded as governing our conduct.” The justices have compiled these principles into a Code in order to dispel the “misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.”
Some observations:
1. I see on Twitter that lots of folks are already racing to fault the Code for not having an enforcement mechanism. But as Russell Wheeler of the liberal Brookings think tank has forcefully argued, “The absence of formal review mechanisms for justices’ ethical decisions is a necessary imperfection in the system,” and proposals to correct that imperfection “would likely create more problems than they would solve.”
For what it’s worth, I see that even the proposal by law professor Steve Vladeck for Congress to create an enforcement mechanism would ultimately entail nothing more than a reporting requirement on a newly created Article III Inspector General. I say this not to criticize the proposal but only to observe how far short it falls of the sort of enforcement measures that some critics of the Court mistakenly imagine to be possible.
2. The Code of Conduct runs eight pages. The five general canons it sets forth are word-for-word identical to the canons in the code of conduct for lower-court judges, except that the word “Justice” replaces “Judge.” There are some differences in the subcanons, but I haven’t parsed them carefully enough yet to determine whether they are significant.
3. The Code of Conduct is followed by five pages of commentary. (In the code of conduct for lower-court judges, the commentary on each canon follows that canon.) The Court states that “much” of the commentary from the lower-court code “is inapplicable” and that its own commentary “is tailored to the Supreme Court’s placement at the head of a branch of our tripartite governmental structure.”
On recusal, the justices “follow the same general principles and statutory standards for recusal as other federal judges, …. [b]ut the application of those principles can differ due to the effect on the Court’s processes and the administration of justice in the event that one or more Members must withdraw from a case.” As I understand it, that means that the Court views the recusal threshold (at least for appearance of partiality) as higher.
The commentary also emphasizes that recusal depends on a justice’s “knowledge of certain relationships or interests,” and it states that, in light of the huge volume of certiorari petitions, justices will rely on the parties’ disclosure statements “in identifying interested parties that may present grounds for recusal.” In other words, a justice can’t be held to a broader standard of “you should have known …” or “ you should have discovered ….”
Confirming the express text of subcanon 3(B)(5), the commentary states that “amici and their counsel will not be a basis for an individual Justice to recuse.”