The U.S. Supreme Court is the pinnacle of the American judicial system, so one might assume that justices on the highest court in the land would be held to the highest possible ethical standards. In fact, they are exempt from a code of conduct that applies to other federal judges, though Chief Justice John G. Roberts Jr. has said that they consult that code in assessing their ethical obligations.
That’s not good enough at a time when the court is facing a crisis of public confidence, with trust falling to a 50-year low even before justices overturned Roe vs. Wade in June. If the justices don’t act expeditiously on their own to establish a robust ethics code and meaningful enforcement measures, Congress will have good reason to step in.
Among other provisions, the Code of Conduct for United States Judges promulgated by the U.S. Judicial Conference says that a judge “should avoid Impropriety and the appearance of Impropriety in all activities.” But this code doesn’t formally apply to Supreme Court justices.
The justices are covered by statutes mandating financial disclosure and prohibiting them from participating in cases when their “impartiality might reasonably be questioned.” But there is no enforcement mechanism to guarantee that justices follow that requirement (other than the rarely used impeachment process). Nor are justices covered by the Judicial Conduct and Disability Act, a law that allows people to file complaints alleging that a federal judge has engaged in “conduct prejudicial to the effective and expeditious administration of the business of the courts” such as accepting bribes or giving special treatment to friends or relatives.
Some experts in legal ethics believe that Justice Clarence Thomas should recuse himself from cases stemming from the 2020 presidential election because of the involvement of his wife, conservative activist Virginia Thomas, in efforts to overturn the results, including emailing two Arizona lawmakers urging them to choose their own slate of electors. We agree. But while a motion could be filed with the court asking Thomas to recuse from such cases, neither he nor the court would be obligated to respond to it.
In response to the Thomas controversy, several members of Congress — including California Sens. Dianne Feinstein and Alex Padilla — wrote a letter last year urging Thomas to recuse himself from cases involving the election and the Jan. 6, 2021, attack on the U.S. Capitol. They also asked that Roberts commit to creating a binding Code of Conduct for the high court that would include enforcement provisions and a requirement that justices explain their recusal decisions in writing.
So far the court hasn’t acted, despite a comment by Justice Elena Kagan in 2019 that Roberts was studying the question. The Washington Post reported earlier this month that the justices have discussed a possible code of conduct but haven’t reached a consensus.
If the court doesn’t act on its own, Congress seems increasingly willing to fill the vacuum. The Supreme Court Ethics Act, a bill introduced earlier this month, would require the U.S. Judicial Conference to adopt a Code of Conduct that would apply to Supreme Court justices and would require the court to appoint an Ethics Investigations Counsel who could probe public complaints about violations of the code. The bill also would obligate justices to explain why they recused from a case or denied a motion that they do so.
A more expansive bill, the Supreme Court Ethics, Recusal and Transparency Act, would have chief judges of federal appeals courts investigate complaints about possible misconduct by Supreme Court justices. Like the other bill, it would provide for a Supreme Court code of conduct (in this case adopted by the court itself) and require justices to explain their recusal decisions. But it also would ensure that requests for a justice to recuse would be reviewed by his or her colleagues.
The best outcome would be legislation combining the proposals. An ideal bill would require a code of conduct for the high court, establish the position of Ethics Investigation Counsel and empower other justices to review a colleague’s refusal to recuse.
Legislation wouldn’t be necessary, of course, if the court took the responsible action on its own to establish a code of ethics with mechanisms to enforce it.
Earlier this month the American Bar Association approved a resolution calling on the Supreme Court to adopt an ethics code “comparable to the Code of Conduct for United States Judges.” A report accompanying the resolution said: “The absence of a clearly articulated, binding code of ethics for the justices of the court imperils the legitimacy of the court.”
It’s understandable that Roberts and his colleagues might worry about micromanagement of the court by members of Congress. But he should be more concerned about maintaining the legitimacy of the high court. If the justices continue to dawdle, Congress will have little choice but to act.
