On November 13, 2023, the United States Supreme Court announced that it was adopting a Code of Conduct “to set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the Members of the Court.”1 For the first time in its history, the Court will be formally subject to a code of ethics. In order to understand the impetus for the issuance of a Code of Conduct by the Supreme Court, one cannot avoid the landscape out of which these new ethical rules emerged. In this situation, context is everything.
For a number of years, the Gallup organization has been tracking the public’s trust in the judicial branch of the federal government embodied by the Supreme Court. Earlier in the year, Gallup reported that the public’s overall opinion of the Supreme Court was a 40% approval rating. This rating was equal to the Court’s record-low approval rating recorded in September 2021, which ticked up to 43% in July 2022 before dropping back to 40%.2 Additionally, a poll released in September, 2023 found that only 49% of Americans have trust or confidence in the federal courts as a whole, following a 47% trust level a year ago.3 Before 2022, based on Gallup’s poll numbers, trust in the judicial branch averaged 68%.4
What explains this shift in the level of trust? In part, it is likely a product of our greatly polarized times, wherein the Court is seen as simply another partisan political branch of the government to be controlled and lobbied. The roots of this somewhat cynical view of the Supreme Court can perhaps be found in the unprecedented blocking of President Obama’s nomination of Merrick Garland and the speed with which the Senate moved to confirm Amy Coney Barrett just days before the 2020 election. Or perhaps the roots go back even further to the controversial fights over the nominations of Robert Bork and Clarence Thomas. Whatever the source, the timing of this drop in public trust in the Supreme Court seems to correspond with a rapid fundamental shift in the perceived ideological makeup of the Court, resulting from the appointment of Justice Gorsuch, Justice Kavanaugh, and Justice Barrett. The shift in the composition of the Court was quickly followed by the overturning of Roe v. Wade, eliminating constitutional protections for the reproductive rights of women that had existed for half a century. On the heels of the Court’s decision in Dobbs, the Court then moved to lessen the protections for voting rights provided by the Voting Rights Act and to eliminate the consideration of racial diversity in admissions in higher education. None of these decisions were incremental in nature, seemingly leading to a public perception of the Court as moving aggressively in a conservative direction.
Further, revelations regarding financial dealings and apparent conflicts of interest raised questions about the ethical conduct of some of the justices.5 For example, (1) a report emerged that Justice Thomas had, over a twenty year period, received undisclosed gifts from Harlan Crow, a conservative billionaire, that included private jet and yacht travel to a variety of destinations,6 (2) a report regarding the use of Court staff by Justice Sotomayor to further the marketing and sales of her memoir and children’s books, sales which are worth approximately $4 million since she joined the court in 2009,7 and (3) reports of the potential improper disclosure of a property sale worth roughly $2 million by Justice Gorsuch to a prominent law firm executive, whose firm often appeared before the Court.8
These were certainly not the first times that concerns have been raised regarding the conduct of Supreme Court justices. Prior calls had been made for Justice Scalia to recuse himself from the Court’s consideration of a case in which Dick Cheney was a party, because of his close association with the former Vice President. Shortly before the oral argument, however, Justice Scalia filed a 21-page opinion in which he explained his reasons for refusing to recuse himself.9 Justice Kagan and Justice Thomas also were subject to calls for recusal in the Affordable Care Act cases because Justice Thomas’s wife had lobbied on behalf of parties in the case and because Justice Kagan had worked on parts of the legislation when she was Solicitor General of the United States.10
Given these potential conflicts of interest and the criticism surrounding them, where were the justices to turn for guidance as to the proper ethical path? All other judges, federal and state, could turn to their respective Code of Judicial Conduct for guidance in navigating potential conflicts of interest. However, it turns out the justices could turn only to themselves, because the Supreme Court had no formal ethics code.
The 2011 Year-End Report on the Federal Judiciary presented by Chief Justice Roberts focused on the issue of judicial ethics.11 During the year leading up to the report, several of the justices had been criticized for alleged involvement in political fundraisers, acceptance of gifts and travel expenses paid for by groups with political viewpoints, and (perhaps most controversially) the refusal to recuse themselves from constitutional challenges to the health care reform legislation despite alleged conflicts of interest. In his report, Chief Justice Roberts acknowledged these accusations, as well as the existing legal framework that purportedly covered some of the alleged conduct.12 However, the Chief Justice pointedly noted that the “Court has never addressed whether Congress may impose [ethical] requirements on the Supreme Court,” and pointed out that the constitutionality of the existing recusal statute has “never been tested.”13 The Chief Justice appeared to be telegraphing that he had grave doubts about the power of the Congress to impose enforceable ethics regulations on the Court. This same view was reflected in comments recently made by Justice Alito.14
The idea of a code of conduct for the judiciary can be traced to the 1789 Judiciary Act, wherein Congress adopted the official oath for all federal judges, including Supreme Court justices.15 Under the terms of the oath, judges and justices were required to pledge to “faithfully and impartially” discharge the duties of the office.16 Following the Judiciary Act, Congress passed the first federal disqualification statute, 28 U.S.C. § 455, in 1792.17 This statute required a judge to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”18 However, this disqualification statute applied only to lower federal judges, not the justices of the Supreme Court.19
Over the years, Congress repeatedly modified and broadened this disqualification statute, but its application remained limited to judges on the “inferior” courts. In 1948, Congress expanded the reach of this statute to include the justices of the Supreme Court.20 Today, three different statutes govern recusal of federal judges, but only one applies to Supreme Court justices.21 That statute, 28 USC 455, requires “[a]ny justice, judge, or magistrate judge of the United States” to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” as well as for other listed grounds, such as bias or prejudice, personal participation in the case, pecuniary interest, or a family connection to a lawyer or party to the case.22
In addition to recusal statutes, Congress adopted The Ethics in Government Act of 1978 and The Ethics Reform Act of 1989, both of which apply to the Supreme Court justices.23 The 1978 Act requires most high-level federal officials to file annual reports in which they publicly disclose certain aspects of their finances, including their outside income, the employment of their spouses and dependent children, investments, reimbursements for travel-related costs, gifts, and household liabilities.24
On the other hand, the Ethics Reform Act of 1989 imposes strict limits on outside earned income and gifts for all federal officials, including federal judges.25 Under the Act, justices are prohibited from most outside employment, with the exception of teaching.26 Additionally, justices may not accept honoraria for an appearance, speech, or article, though reimbursement for travel expenses is permitted.27 Finally, the Act bars judges and justices from receiving gifts from anyone whose “interests may be substantially affected by” the performance of their duties.28
The idea of an ethical code for the Supreme Court has been discussed for years, including by the Court itself. For example, in testimony before a Senate Committee in 2019, Justice Kagan indicated that “the Chief Justice is studying the question of whether to have a code of judicial conduct that is applicable only to the United States Supreme Court.”29 The Court has now issued that code of conduct, stating:
For the most part these rules and principles are not new: The Court has long had the equivalent of common law ethics rules, that is, a body of rules derived from a variety of sources, including statutory provisions, the code that applies to other members of the federal judiciary, ethics advisory opinions issued by the Judicial Conference Committee on Codes of Conduct, and historic practice. The absence of a Code, however, has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules. To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct.30
The historical significance of the adoption of the new code was certainly acknowledged by many. For example, J. Michael Luttig, a well-regarded former federal appellate judge, praised the move, stating that “[t]he Supreme Court’s promulgation of a code of conduct today is of surpassing historic significance… The court must lead by the example that only it can set for the federal judiciary, as it does today.”31 Others were skeptical of the new code due to its lack of any formal enforcement mechanism. Stephen Vladeck, a law professor at the University of Texas who studies the Court, indicated that [e]ven the most stringent and aggressive ethics rules don’t mean all that much if there’s no mechanism for enforcing them. And the justices’ unwillingness to even nod toward that difficulty kicks the ball squarely back into Congress’ court.”32
The new code itself contains five ethical canons. Each canon is accompanied by notes expanding upon the meaning and application of the individual canon. The notes accompanying canons 1 and 2 explain that each justice should “maintain and observe high standards of conduct” and “should not allow family, social, political, financial, or other relationships to influence official conduct or judgment.”34 As explained in the notes to canon 3, it is intended to govern disqualifications, articulating the circumstances in which justices should recuse themselves from participating in cases where their impartiality might reasonably be questioned.35 According to the notes, canon 4 is intended to allow justices to speak, write, and teach about the law and engage in other extrajudicial activities, subject to certain limitations.36 Canon 5 provides that justices should not engage in political activities, such as holding a leadership role in a political organization, endorsing candidates for political office, political fundraising, making campaign contributions, and running for elected office.37
While the canons of the newly adopted justices’ Code of Conduct are nearly identical to the judges’ Code of Conduct that applies to the lower federal courts, they have different explanatory notes. This will, no doubt, impact the way in which they are applied in practice. One critical distinction between the two codes is the express recognition in the justices’ “duty to sit,” an obligation to participate in cases unless disqualified. This duty to sit reflects a fundamental difference between the Supreme Court and the lower federal courts. In the lower courts, when a judge must recuse, another judge may step in to take that judge’s place. For the Supreme Court, on the other hand, no current law allows a substitute judge to hear a case in the place of a recused justice. Thus, a situation can arise where the Court would be left an even number of justices to decide a case, increasing the chance that the Court could be locked in a tie vote and unable to render a clear decision.
Only time will tell whether the adoption of this new Code of Conduct will impact how the justices go about their work or change the eroding public trust in the Court’s decision. As Chief Justice Roberts said in his 2011 Report, “Judges need and welcome guidance on their ethical responsibilities, . . . But at the end of the day, no compilation of ethical rules can guarantee integrity. Judges must exercise both constant vigilance and good judgment to fulfill the obligations they have all taken since the beginning of the Republic.”38
Professor Harrison currently holds the David and Nancy Wolf Chair in Ethics and Professional Identity at Northern Kentucky University Salmon P. Chase College of Law. Professor Harrison currently teaches Civil Procedure, Torts, Professional Responsibility, Remedies, and Sexuality, Identity, and the Law.
1 Statement of the Supreme Court regarding the Code of Conduct for justices of the Supreme Court of the United States, issued November 13, 2023.
2 Jeffrey M. Jones, Supreme Court Approval Holds at Record Low, Gallup, August 2, 2023, https://news.gallup.com/poll/509234/supreme-court-approval-holds-record-low.aspx#:~:text=Line%20graph.,a%2042%25%20reading%20in%202005
3 Jeffrey M. Jones, Supreme Court Trust, Job Approval at Historical Lows, Gallup, October 6, 2022, https://news.gallup.com/poll/402044/supreme-court-trust-job-approval-historical-lows.aspx
4 Id.
5 I take no position on the merits of any allegations of unethical conduct by any particular justice, primarily because some of the facts underlying these allegations are in dispute. The allegations are noted here only to indicate how these discussions have shaped public perception of the Court and of the perceived need for the Court to respond in some manner.
6 Joshua Kaplan, Justin Elliott and Alex Mierjeski, Clarence Thomas and the Billionaire, Prp Publica, April 6, 2023, https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow. See also, Jeff Shesol, Op-Ed, Should the Justices Keep their Opinions to Themselves?, N.Y. TIMES, Jun. 28, 2011, at A23 (describing Justice Alito’s attendance at the American Spectator’s fund-raising dinner, where he had previously given the keynote address, and Justices Thomas’s and Scalia’s attendance at political strategy meetings hosted by the conservative Koch brothers)
7 Steven Lubet, One More Reason Why the Court Needs a Code, Prospect, July 28, 2023, https://prospect.org/justice/2023-07-18-supreme-court-ethics-code-sotomayor/
8 Jessica Schneider and Tierney Sneed, Justice Neil Gorsuch’s Property Sale to Prominent Lawyer Raises More Ethical Questions, CNN, April 25, 2023, https://www.cnn.com/2023/04/25/politics/gorsuch-property-sale-lawyer-ethics/index.html
9 Cheney, 541 U.S. at 916, 923 (Scalia, J., mem.).
10 See, e.g., Jeffrey Toobin, Partners, NEW YORKER, Aug. 29, 2011, at 41; Editorial, The Supreme Court’s Recusal Problem, N.Y. TIMES, Dec. 1, 2011, at A38.
11 Chief Justice John Roberts, 2011 Year-End Report on the Federal Judiciary, December 31, 2011.
12 Id.
13 Id.
14 David B. Rivkin Jr. and James Taranto, Samuel Alito, the Supreme Court’s Plain-Spoken Defender, Wall Street Journal, July 28, 2023, https://www.wsj.com/articles/samuel-alito-the-supreme-courts-plain-spoken-defender-precedent-ethics-originalism-5e3e9a7?st=yaf444fmb8q9vd1
15 Judge Jeremy Fogel and Noah Bookbinder, Building Public Confidence: How the Supreme Court Can Demonstrate Its Commitment to the Highest Ethical Standards, CREW Report, August 9, 2023, https://www.citizensforethics.org/reports-investigations/crew-reports/building-public-confidence-how-the-supreme-court-can-demonstrate-its-commitment-to-the-highest-ethical-standards/#:~:text=Public%20confidence%20in%20the%20judiciary,both%20professional%20and%20personal%20conduct
16 Id.
17 Act of May 8, 1792, ch. 36, § 11, 1 Stat. 278–79 (1792). See also Amanda Frost, Judicial Ethics and Supreme Court Exceptionalism, 26 Georgetown Journal of Legal Ethics (2013). Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/1380
18 Id.
19 Id.
20 Act of June 25, 1948, ch. 646, § 455, 62 Stat. 869, 908 (codified as amended at 28 U.S.C. § 455 (1992)).
21 Amanda Frost, Judicial Ethics and Supreme Court Exceptionalism, 26 Georgetown Journal of Legal Ethics (2013). Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/1380
22 Id.
23 Id.
24 5 U.S.C. app. 4, § 102 (2012).
25 Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 (codified as amended at 5 U.S.C. app. 7 § 502(a)(5).)
26 Id.
27 Id.
28 5 U.S.C. § 7353(a)(2) (2011).
29 Steven Lubet, The Supreme Court’s New Attempt to Combat Its Scandals Is Not Going Well, Slate, November 14, 2023, https://slate.com/news-and-politics/2023/11/supreme-court-ethics-rules-clarence-thomas-rv.html
30 Statement of the Supreme Court regarding the Code of Conduct for justices of the Supreme Court of the United States, issued November 13, 2023.
31 Joshua Kaplan, Justin Elliott, Brett Murphy and Alex Mierjeski, The Supreme Court Has Adopted a Conduct Code, but Who Will Enforce It?, Nov. 13, 2023, https://www.propublica.org/article/supreme-court-adopts-ethics-code-scotus-thomas-alito-crow
32 Id.
33 Code of Conduct for justices of the Supreme Court of the United States, issued November 13, 2023.
34 Id.
35 Id.
36 Id.
37 Id.
38 Chief Justice John Roberts, 2011 Year-End Report on the Federal Judiciary, December 31, 2011.