What Ethics Rules Should Govern the Supreme Court?

By Ishani Sachdeva

The United States Supreme Court has attracted scrutiny recently due to an influx of reporting on alleged ethical misconduct of its members. This reporting has spurred debate on federal legislation requiring the court to adopt a code of conduct. A panel of experts on judicial ethics, professional responsibility and constitutional law gathered on June 15, 2023, to discuss existing ethics rules, efficacy of a binding ethics code, including possible enforcement mechanism, separation of powers and judicial independence.

Watch the program here.

Professor Stephen Gillers of New York University School of Law starts the discussion by listing five existing sources of ethical rules that currently govern the Supreme Court and other Federal judges. Sources ranging from the Code of Conduct generated by the Judicial Conference of the United States to statutes including 28 United States Code section 351 governing complaints about behavior of Federal judges (other than the Supreme Court) and the Ethics in Government Act, 5 U.S.C. §§ 13101-13111 (1978) governing financial disclosure for all judges including Supreme Court justices are briefly explained by the professor. Gillers also throws light on recusal statutes, including the nebulous, catch-all provision 28 United States Code section 455 and section 144, which allows a party to allege a judge’s personal bias in favor of the adversary.

“What should the ethical rules governing Supreme Court judges be and how should those rules be enforced?” asks Michael Cardozo, former NYC Corporation Counsel and former New York City Bar Association President. Hon. Nancy Gertner, Retired Judge, U.S. D.Mass., replies, “I find it mystifying that the Court has not expressly adopted [a judicial code of conduct] for itself. There is really no excuse for the Court not adopting its own code of conduct, particularly given the disclosures and the accusations of the past couple of years. I think it would not be a bad idea to have the Judicial Conference adopt a code of conduct.”

Russell Wheeler, Non-Resident Senior Fellow at the Brookings Institute, while agreeing with Judge Gertner’s remarks, further suggests creation of an “ethics officer within the Supreme Court who would admonish the justices when they seem to be violating the code.” Alicia Bannon, Director of the Judiciary Program at the Brennan Center for Justice, points to vast psychology literature discussing how people are incredibly bad judges of their own biases and advocates for “the Judicial Conference to issue advisory opinions while requiring justices to give reasons with respect to their recusal decisions.”

Thomas Morgan, Professor Emeritus at The George Washington University School of Law, outlines the importance of checks and balances, the other side of the separation of powers doctrine, and points out that an independent judiciary is one of this nation’s “outstanding characteristics.” Morgan illustrates the complexity of this issue while focusing on “dealing with the preservation and strength of one of the three branches of government” and notes that “what is done today can come back to hurt people for generations of the future.”

Cardozo, in furthering the discussion, asks the panelists: “What would each of you suggest we do to move the issue forward?” Morgan urges to continue the focus on “internal institutional mechanism more than external” factors to find a solution and maintains that “a lot of it can be handled through the Court itself.”

Gillers replies that “The Judicial Conference now has the power, through its interpretation of the Ethics in Government Act, to create vigorous enforcement and disclosure obligations.” Judge Gertner also adds her holistic concerns about inaction generally, including how inaction can affect justice and, hence, urges that “the Judicial Conference should be emboldened to do more.”

The panel also discusses the issue of recusal possibly leading to a divided Court. “And so, what if you have a divided Court?” asks Gillers. “Is it not better to have a divided Court, than having a justice who should be recused?” He adds that “recusal will not come from a code for the Court” and suggests the creation of a “statute that [will] mandate recusal under certain circumstances.”

The panelists end the discussion by coming up with possible solutions that should be considered by the Court and by Congress, taking into account the practicalities of our existing system. Bannon points to the ability of the Court to solve the problem itself by “voluntarily adopting the code of conduct” and by giving reasons for denying recusal motions. She, along with Judge Gertner, argues that “this is a sui generous moment” and proposes to “err on the side of transparency.” Gillers argues to go slow and suggests “Congress working with the Court can help the Court’s current predicament.” Wheeler points to alternative approaches and recommends looking elsewhere including various states and their judicial functioning. On the other hand, Morgan encourages the “use of existing institutions of the judiciary that can monitor, advise and give counsel [to justices] on close questions.”

Maybe “we should look to other countries’ high courts. . .that have created enforcement mechanisms without destroying judicial independence” suggests Judge Gertner. “But the worst thing we could do is to say, as many have said, there’s nothing we can do, because that [will] only make the situation worse.”

For further information on pending federal legislation that relates to the conduct of Supreme Court Justices, see Supreme Court Ethics, Recusal and Transparency Act of 2023, Supreme Court Ethics Act and Supreme Court Code of Conduct Act.

Ishani Sachdeva is the City Bar’s Policy Intern and a second-year law student at Indiana University Maurer School of Law.