(Cross posted on Legal Ethics Forum)
Writing in The New Yorker, Lincoln Caplan argues in favor of a Code of Conduct for the U.S. Supreme Court, focusing primarily on issues of recusal. The National Review’s Ed Whelan disagrees, pointing out that SCOTUS recusal is already subject to 28 U.S.C. 455, which is applicable to all federal justices, judges, and magistrates.
Whelan definitely has the better of this particular argument. Although the language is somewhat different, it is hard to imagine a case where the outcome would be different under the Code of Conduct for United States Judges – adopted by the Judicial Conference for the lower courts – and the federal statute.
Nonetheless, Caplan is right to point out that SCOTUS is the only court in the United States that is not governed by a written code of ethics, and there are still good reasons – unrelated to recusal – for SCOTUS to adopt its own code. Consider the following questions (which I first raised in a 2005 column in The American Lawyer, and later in a 2012 article in the Valparaiso Law Review):
Is it right or wrong for justices to speak anonymously to the press following a controversial decision? Is it acceptable for justices to appear at political fundraisers or to address partisan legal organizations? To vacation with litigants in the middle of pending proceedings? To endorse, or appear to endorse, candidates for elective office? To solicit charitable contributions? To comment on legal issues or cases pending in other courts? To accept gifts from political activists? To assign clerks or court staff to work on their memoirs or other books? Some of these events have occurred and others have not (although they are all imaginable). When questioned, individual justices have from time to time stated personal opinions on the virtuousness of their own activities – unsurprisingly, no justice has ever admitted doing anything wrong – but there is no definitive statement from the Court itself regarding self-imposed limits of propriety.
At the Supreme Court level, the function of a judicial code is not to compel compliance or punish violations – both of which would be impossible. Rather, the purpose of a code would be to set identifiable standards for the justices’ conduct, so that the public may know what to expect of the nine most powerful judges in the nation. Ultimately, it would matter very little what the Supreme Court’s Code of Judicial Conduct might say about the confidentiality of deliberations, or anything else, so long as it says something definitive. It is fine and good for the justices to look to numerous outside sources for “guidance,” as Chief Justice Roberts put it in his 2011 Annual Report, but a well-articulated Code of Conduct would actually let the public know what to expect.