Improving the 2023 Supreme Court Code of Conduct: The Supreme Court Needs a Mandatory and Enforceable Code of Ethics
- The 2023 Code of Conduct adopted by the Supreme Court falls short of restoring the public’s faith in our highest court. The 2023 Code of Conduct is less demanding than the Judicial Code that binds lower court federal judges because it is not mandatory and is not enforceable. It should be reformed.
- The City Bar endorses the proposed High Court Gift Ban Act (with some exceptions).
GIFTS AND SOCIAL HOSPITALITY
- Justices should be, and are, required to comply with the gift and disclosure requirements of the Ethics in Government Act.
- Congress should enact an ethics code that provides explicit enforcement procedures for rules regarding gifts to and disclosures by the Justices. (Learn more)
Gifts
- A Justice must report any gifts worth $480 or more (the current amount that requires disclosure).
- A Justice can accept a gift from a friend only if the relationship with the friend is such that the Justice would recuse him or herself from a case involving the friend in any event.
- If the gift is for a special occasion, it is commensurate with the occasion and the relationship.
- The Justice cannot accept gifts from the same or different sources on a basis so frequent that a reasonable person would believe that the public office is being used for private gain.
- There should be a financial limit of $1000 on the total amount of gifts that a friend can give to Justice in a single year.
- The Court’s Office of Legal Counsel should give prior approval to any gifts valued at $250 or more.
Social Hospitality
- The social hospitality gift reporting exemption applies only to food, lodging, or entertainment and is intended to cover such gifts of a personal, non-business nature. The reporting exemption does not include:
- gifts other than food, lodging or entertainment, such as transportation that substitutes for commercial transportation;
- gifts extended for a business purpose;
- gifts extended at property or facilities owned by an entity, rather than by an individual or an individual’s family, even if the entity is owned wholly or in part by an individual or an individual’s family;
- gifts paid for by any individual or entity other than the individual providing the hospitality, or for which the individual providing the hospitality receives reimbursement or a tax deduction related to furnishing the hospitality; or
- gifts extended at a commercial property, e.g., a resort or restaurant, or at a property that is regularly rented out to others for a business purpose.
- Any specific “social hospitality” given to a Justice that is valued at $480 or more should be disclosed and reported.
- The total annual limit of $1000 for gifts should include all social hospitality, which is a form of gift, that a Justice can receive in a year.
- The Court’s Office of Legal Counsel should give prior approval to any social hospitality whose value is $250 or more.
RECUSALS
- Justices should be, and are, required to comply with 28 U.S.C. § 455, which provides that a Justice “shall” recuse whenever the standards of § 455 are met.
- The “rule of necessity” has no role to play in a Justice’s decision on recusal so long as a quorum of six Justices remains available.
- The “duty to sit” has no role to play in a Justice’s decision on recusal, as it was eliminated as a relevant factor in recusal decisions in the 1974 amendments to 28 U.S.C. § 455.
- Parties and amici to cases before the Supreme Court must disclose any gift or other payments from the parties or their counsel to any Justice in the preceding two years, or any lobbying contact in support of the Justice’s confirmation.
- Individuals or entities that have contributed to an amicus organization more than 3% of its revenues or $100,000 in the previous calendar year must be disclosed.
- If a Justice becomes aware that a party submitting an amicus brief presents a conflict that would require recusal, that Justice should not read the brief and must order the brief stricken from the record.
- Justices shall not acquire individual shares in publicly traded companies and shall divest from existing shares if that investment would require recusal.
- Justices have a duty to know the financial interests of their spouses and minor children.
- When a Justice recuses, that Justice should provide the public with the reason(s) for recusal, if possible, by citation to the relevant subsection of 28 U.S.C. § 455.
- Where a motion to recuse is made and denied, or the question of recusal is otherwise presented to the Court, an opinion explaining the reasons for denial should be issued.
We urge reform of the Supreme Court’s Code of Conduct to help restore the public’s faith in our highest court