There are things to like about the Code of Conduct that the Supreme Court promulgated earlier this month. It is a bona fide code of conduct—one that, in the main, tracks the Code of Conduct for U.S. Judges. It follows the same structure, features the same five canons, and includes most of the same provisions that are worded in the same way. Some rules (like the duty to afford litigants their full right to be heard according to law, and exceptions to the duty to avoid communicating with one party to the case without the other party’s knowledge) have reasonably been excluded because they are relevant primarily to the lower courts. And it is not fair to condemn the new code as toothless because it includes no enforcement mechanism. Like the ABA Model Code, the most that codes do is cross-reference separately established disciplinary processes and highlight the role that codes play in those processes. One can debate the virtues of creating a disciplinary process for the Supreme Court, but its absence here is no fault of the code itself.
That said, there are some problematic differences between the new SCOTUS Code and the Code of Conduct for U.S. Judges. Although the latter code does not (and need not) include disciplinary processes as such, Canon I declares that judges should “maintain and enforce” high standards of conduct, while Canon 3(B)(6) adds that “[a] judge should take appropriate action upon receipt of reliable information indicating the likelihood that a judge’s conduct contravened this Code.” The new SCOTUS Code, in contrast, states that its justices should “maintain and observe” high standards of conduct and omits any duty to take action in response to known code violations by other justices. Such rules may have been omitted to preserve collegial relations among the justices, but they did so at the expense of diminishing confidence in the court’s commitment to taking its code seriously.
The new code does not impose a duty to “be faithful to…the law,” as required by Canon 3(A)(1) of the Code of Conduct for U.S. Judges. It is possible that this duty was thought redundant of the Canon 2(A) obligation to “respect and comply with the law” (which the court retained). The obligation to respect and comply with the law, however, concerns the duty to abide by the law in a judge’s daily life, while the duty to be faithful to the law concerns a duty to uphold and apply the law when deciding cases. For justices under increased fire for ideological, partisan-seeming decision-making, the optics of the court exempting itself from a duty to uphold and apply the law is unfortunate.
Perhaps most controversial are the SCOTUS Code tweaks to the disqualification rules, tweaks that are largely consistent with a statement that the court submitted to the Senate Judiciary Committee in April. Federal law imposes disqualification requirements on the Supreme Court, the constitutionality of which Chief Justice John Roberts has called untested and Justice Samuel Alito has rejected. Whereas the Judicial Conference accedes to those statutory requirements by importing them into its Code as mandatory “shalls,” the new SCOTUS Code frames them as hortatory “shoulds.”
The SCOTUS Code’s disqualification provisions begin with new language that a “Justice is presumed to be impartial,” which, while consistent with precedent, has no logical place in a code designed to guide judges on their ethical responsibilities. The next clause in the same sentence adds that a justice “has an obligation to sit unless disqualified,” which is redundant of a clause in the previous section that a justice “should participate in matters assigned, unless disqualified,” but highlights the court’s ongoing interest in resurrecting the “duty to sit” as a turn of phrase that Congress sought to abrogate in 1974.
The new SCOTUS Code qualifies the statutory duty to disqualify when a justice’s “impartiality might reasonably be questioned” by adding language interpreting it to mean that “an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” While consistent with interpretive precedent, this clause is cherry-picked to omit guidance that the “reasonable person” is not a judge but an outside observer, who is less inclined than a judge to credit the judge’s impartiality.
Finally, the new SCOTUS Code adds that “[t]he rule of necessity may override the rule of disqualification.” While consistent with precedent in the abstract, the court’s commentary accompanying the code strongly implies that the rule of necessity has some bearing on minimizing the need for tie votes on the court. The rule of necessity has been interpreted to mean that “when all are disqualified, none are disqualified” — meaning, for example, that when all justices have a disqualifying interest in the outcome of a case, the need for judicial review trumps the need for disqualification. Four-to-four ties are minimized by the duty to preside unless disqualified, but there is no “necessity” for nine justices to participate, because there are well-established procedures in place to resolve cases that end in a tie vote. To imply that the rule of necessity adds heft to non-disqualification on the Supreme Court because of the “need” for all nine justices to participate is deeply troubling. It invites the alarming spectacle of the decisive vote in a 5-4 case being cast by a justice whose impartiality is so deeply in doubt that it would force the disqualification of a circuit or district judge subject to the identical statutory standard.
Ultimately, whether the SCOTUS Code will diminish the frequency with which its justices are embroiled in controversies over their conduct depends on whether the court takes its new code seriously. It does not bode well that the court omitted from its code the wealth of commentary included in the Code of Conduct for U.S. Judges, which offers important guidance to judges serious about their ethical responsibilities. Nor does the preamble to the new SCOTUS Code inspire confidence: it asserts that the code simply summarizes ethical restrictions that the court has long followed and seeks to “dispel” a “misunderstanding” to the contrary. Juxtaposed against this disheartening claim that the code’s raison d’être is to get everybody off its back, the SCOTUS Code concludes in a more productive vein, listing steps that the court is taking and will take to provide guidance and training on “recurring ethics and financial disclosure issues.” These subtly mixed messages betray an ongoing tension within the court itself over the limits of Supreme Court exceptionalism and the extent to which its justices perceive themselves as a part of or apart from the rest of the American judiciary.
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