Times of (Not So) Good Behavior: The Need for a Supreme Court Code of Conduct￼
In recent times, the Supreme Court has faced record low approval ratings and a series of controversies. Despite this increasing unhappiness with the Court’s performance, there is not much the American public can do to change how the Court operates. The Court is incredibly insulated from public opinion and the political process. Justices serve for life and set their own ethical standards. Unlike the rest of the federal judiciary, no code of conduct explicitly applies to Supreme Court Justices. This state of affairs has led to concerns about impartiality, especially as related to the Justices’ spouses’ political and business activities. Given this reality, the Supreme Court should adopt a code of conduct for itself. A code of conduct will help maintain uniform standards of impartiality and help avoid impropriety.
The most recent ethical controversy plaguing the Court surrounds Chief Justice John Roberts’ wife’s recruiting work. Jane Sullivan Roberts works at the legal recruiting firm Macrae and has received six-figure commissions for helping place top legal talent at law firms. Politico reported that some of these firms have argued cases before the Supreme Court, but the Chief Justice has never acknowledged these specific conflicts of interest or recused himself due to them. In fact, a spokeswoman for the Supreme Court stated that Chief Justice Roberts was mindful of ethical concerns, followed all disclosure laws, and did not need to recuse himself from cases argued by law firms his wife had recruited for. To be fair, Ms. Roberts did quit her old job as a law firm partner at Pillsbury Winthrop Shaw Pittman and turn to legal recruiting once her husband was appointed to the Court, but the appearance of impropriety connected to her current job remains.
There have never been reports that Chief Justice Roberts was influenced to rule a certain way because of commissions his wife received from a firm arguing before the Court. However, impartiality is paramount if our legal system is to function how we need it to. If Justices and Judges are not impartial, true justice cannot be achieved. Almost as important as maintaining impartiality itself is maintaining the appearance of impartiality. Regardless of whether a particular Justice is influenced by outside factors, if it appears that he or she is, damage to the integrity of that Justice, the Court, and the legal system is unavoidable. Therefore, maintaining an appearance of propriety is very important in these circumstances. As outlined in the Code of Conduct for United States Judges, public confidence in the judicial system is eroded when Judges appear to be influenced by personal gain. If the people’s confidence in the judicial system is eroded, they will start to question the legitimacy of the court’s decisions and turn to extra-judicial avenues to resolve their disputes. To avoid this, Justices must be as impartial as possible and take great pains to reflect that impartiality outward.
A similar controversy concerns Justice Clarence Thomas’ wife’s political activities. Ginni Thomas famously supported the lie that the 2020 Presidential Election was stolen, and she even attended a Stop the Steal rally on the morning of January 6, 2021. She used her political connections to try to get former Chief of Staff Mark Meadows to support efforts to overturn the election. During questioning from the January 6th investigation committee, Ms. Thomas expressed regret over that particular line of communication, but still maintained that there were irregularities in the 2020 election.
Ms. Thomas’ political involvement is not new. Ms. Thomas has been active in right-wing political circles for years, holding a position with the conservative Council for National Policy and founding an organization called Groundswell, which aims to fight the culture war on numerous fronts. During the Trump years, aides from his administration were sent to sit in on Groundswell meetings. President Trump himself once took a meeting with Ms. Thomas and others from the group, where they lobbied him about appointing allies to jobs in his administration.
Aside from Ms. Thomas’ support of the lie that the 2020 election was stolen, the main problem here (just as with Ms. Roberts) is the appearance of impropriety. Americans recognize that Supreme Court Justices hold partisan political beliefs in their private lives. However, the Supreme Court must maintain impartiality, as it is the head of an unelected branch of government, designed to watch and check the other two branches. This is why Federal Judges are encouraged to refrain from political activity, and this is what makes the meetings and connections between Ms. Thomas and Trump administration figures so egregious. Justice Thomas’ job required him to rule on the Trump administration’s policies and laws, and sometimes on President Trump’s personal legal fate. It is hard to be confident in Justice Thomas’ ability to properly apply the law in these instances when his wife was in the White House telling Donald Trump how to best secure a conservative agenda. Whether Ginni Thomas has any sway over her husband’s rulings or not, the American public deserves to be confident in the impartiality of its judiciary.
These examples are not meant to specifically single out Justice Thomas or Chief Justice Roberts as particularly ethically questionable actors. Rather, I mean to highlight that significant ethical issues are bound to come up in an age where Supreme Court spouses work for powerful or well-connected interests that may eventually have business before the court.
To prevent such ethical issues among lower federal judges, the Judicial Conference of the United States has implemented the Code of Conduct for United States Judges which governs the behavior of most federal judges. The Judicial Conference publishes formal advisory opinions on ethical issues as they frequently arise. The Judicial Conference is the policy-making body for the federal courts; it is headed by the Chief Justice of the Supreme Court, and includes the Chief Judge from every circuit, a district Judge from each circuit, and the Chief Judge of the Court of International Trade. This means that the Code and accompanying advisory opinions are a form of self-policing by the judicial branch. This Code contains no enforcement mechanism, but does make reference to potential disciplinary action being taken if it is violated.
In unfortunate contrast, there are even less ethical regulations in place governing the Supreme Court Justices. The Code of Conduct for United States Judges does not explicitly apply to Supreme Court Justices. The Justices claim to consult it when the need arises, but maintain they are not directly beholden to this or any other code of conduct. Apart from the Code of Conduct, Congress has enacted some laws attempting to regulate the Justices’ behaviors. There is a law that mandates that Justices recuse themselves in particular circumstances (including when spouses have a financial interest in the parties or subject matter); however, the Justices on the Supreme Court do not strictly apply this law to themselves. There are arguments that this law is perhaps a Congressional overreach of the separation of powers, but the Supreme Court has never explicitly weighed in on this, preferring to let the Justices have discretion over recusal. This is partially because no one can replace a recused Justice, meaning the Court would have to proceed with only eight Justices in that particular case. This transforms a bloc of four Justices voting together from outright losers into majority spoilers. The watchdog group Fix The Court has tracked instances of Justices failing to recuse themselves, and instances of potential ethical breaches more broadly. Another ethical check that applies to the Justices is the Ethics in Government Act, which requires the Justices to make financial disclosures. However, as Supreme Court Justices are appointed for life, the only punishment mechanism for any wrong doing relating to any of these provisions is the extreme option of impeachment.
These ongoing problems highlight why the Code of Conduct for United States Judges should be updated to explicitly include Supreme Court Justices. Furthermore, this code of conduct should take into consideration the Justices’ spouses’ activities. As the current Code of Conduct is a product of the judicial branch, updating it to include Supreme Court Justices would avoid any pesky separation of powers concerns that passing a statute might entail.
This idea is not novel. In 2022, the House Judiciary Committee considered legislation requiring the Supreme Court to adopt a code of conduct, and the American Bar Association recently endorsed the idea. The Supreme Court itself has even considered the issue, but has failed to reach a consensus. The Washington Post reports that these internal considerations about adopting a code of conduct go back four years, and the Court’s legal counsel even prepared a working document of issues.
With the declining popularity of the Court and the recent controversies surrounding the Justices themselves, a code of conduct would help alleviate some of the charges of impropriety surrounding the Court. Of course, this will not completely solve the issue, but as the head of the third co-equal branch of government, the Supreme Court needs to do all it can to retain its legitimacy in the eyes of the public. Knowing that the Justices are consulting a specific, publicly available text whenever an ethical concern arises would lend the legitimacy of procedure to a body often seeped in mystery.
Maura Pallitta is a second-year law student at Cornell Law School. She grew up in New Jersey, and graduated from the University of Wisconsin-Madison where she studied history and political science. She is an associate for Cornell Law School’s Journal of Law and Public Policy.
Suggested Citation: Maura Pallitta, Times of (Not So) Good Behavior: The Need for a Supreme Court Code of Conduct, Cornell J.L. & Pub. Pol’y, The Issue Spotter (March 10, 2023), http://jlpp.org/blogzine/times-of-not-so-good-behavior-the-need-for-a-supreme-court-code-of-conduct/.