CJ Roberts and the Supreme Court Ethics Act of 2015

(Cross posted on The Legal Ethics Forum)

With one glaring exception, every judicial system in the United States has adopted some version of the Code of Judicial Conduct – and they did not have to be coerced into doing it.  The outlier, of course, is the United States Supreme Court, which has steadfastly resisted promulgating any rules of ethics, ever since the concept first arose in the 1924, under the leadership of Chief Justice Taft.  Sen. Chris Murphy (D-CT) thinks that the situation is ridiculous and he recently introduced a bill that would require the Supreme Court to adopt written ethics rules within 180 days of the law’s enactment.  Importantly, the proposed Supreme Court Ethics Act does not specify the content of the necessary code, leaving that to the Court itself.  “There is absolutely no reason why Supreme Court justices shouldn't be subject to the same code of conduct as all other federal judges,” said Murphy in a press release, adding that the law would “make the court more accountable and more transparent.”  Co-sponsor Rep. Louise Slaughter (D-NY) agreed, explaining that “it doesn’t make sense that members of the highest court in the land are the only federal judges exempt from the code of conduct.”

Rep. Slaughter went on to detail some of the many times a justice’s ethics have been questioned in recent years, predictably focusing on the alleged faults of the conservative majority, some of whom, she said, had “allowed their names to be used to promote political fundraisers.”  In fact, however, complaints about Supreme Court justices are bi-partisan.  Fox News host Bill O’Reilly, for example, has called for Justices Kagan and Ginsburg to recuse themselves from this week’s argument in the gay marriage case, claiming that they are compromised because each has officiated at a same-sex wedding. 

None of that is going to matter to Chief Justice John Roberts, however, who regards all such questions as outside interference.  In response to an earlier version of the proposed Supreme Court Ethics Act, he flatly rejected the idea that his court, or the public, would benefit from written rules. 

The need for a written SCOTUS code is a “common misconception,” Roberts argued in his 2011 Year-End Report on the Federal Judiciary.  While recognizing that the United States Judicial Conference, which governs federal judges in all of the lower courts, adopted a Code of Judicial Conduct in 1973, Roberts asserted that there is “no need” for the Supreme Court to accept any such code as a definitive source of ethical guidance.” Instead, he explained, there are many texts and other authorities that the SCOTUS justices can consult to resolve ethics issues.  As to the Judicial Conference’s Code of Judicial Conduct, Roberts allowed that it is a good “starting point,” but added that it “cannot answer all questions,” and “it does not adequately answer some of the ethical considerations unique to the Supreme Court.”  Finally, Roberts noted that “no compilation of ethical rules can guarantee integrity.”

 All of Roberts’s observations are accurate enough but they do not justify, or even explain, the Supreme Court’s unwillingness to adopt a code of conduct.  Access to multiple additional sources, for example, is equally true for every court in the United States.  As Roberts put it, they may all “consult a wide variety of other authorities to resolve specific ethical issues [including] judicial opinions, treatises, scholarly articles, and disciplinary decisions.”  And yet no other court has thought that a sufficient reason to avoid promulgating its own code.

Likewise, the observation that “no compilation of ethical rules can guarantee integrity” is little more than a platitude.  It goes without saying that codes, rules, statutes, and even religious vows can all be broken.  Nonetheless, we still have laws to govern our actions and to articulate society’s expectations about our behavior.  Indeed, codes ranging from sacred to mundane – from the Ten Commandments and the Constitution to lawyers’ Rules of Professional Conduct and municipal building regulations – are violated every day, but few thoughtful people (apart from the occasional anarchist) would suggest that they are therefore meaningless or unnecessary.  Chief Justice Roberts’s argument to the contrary is deeply unsatisfying:  the justices have so much integrity that a code is unnecessary, and yet there is no guarantee they would adhere to a code if they had one.  The Chief would no doubt reject that sort of circular reasoning from a lawyer, and it is no more persuasive coming from the court.

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, given life tenure and the separation of powers.  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. 

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 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.

 Recall Chief Justice Roberts’s observation that the Code of Conduct for United States Judges, as adopted by the Judicial Conference, “does not adequately answer some of the ethical considerations unique to the Supreme Court.”  Maybe so, although the Chief identified only one such concern – recusal, which is in any event governed by a separate federal statute.  Regarding all other matters, it is difficult to envision situations in which Supreme Court justices ought to follow different ethical standards than those of lower court justices. 

Granting Roberts’s premise, however, it would be an entirely simple matter for the Supreme Court to adapt the Code of Judicial Conduct to its own circumstances.  Most state supreme courts have made revisions – some modest, some extensive – to the Model Code prior to adoption, and the United States Supreme Court could easily take the same approach.  Is the Judicial Conference Code too restrictive regarding political activity?  Is it too permissive when it comes to the use of court staff?  Well, fix it.  Of course, that would require a public declaration of the court’s own standards on matters such as confidentiality and political activity, in which case the justices could then be held publicly accountable for noncompliance – the latter being something they appear to regard with near horror. 

Ultimately, it would matter very little what the Supreme Court’s Code of Judicial Conduct might say about the acceptance of gifts, attendance at banquets, 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, but a well-articulated Code of Conduct would actually let the public know what to expect.

Comments

[Orin Kerr]

Steve, I'm skeptical that a Supreme Court Ethics Act would be a good idea. I feel that way for two reasons:

1) There is already such intense scrutiny of each of the the nine Justices -- where they go, where they speak, and with whom they associate. Every step they take draws a news story. And there is always one half of the political spectrum ready to express (faux) outrage over whatever the Justices on the other side do. Given the reality of such a fishbowl, do we really need a formal ethics code?

2) Maybe I'm too cynical, but as a practical matter the calls for an ethics code seem often to be a search for a way to help each side argue for the recusal of a Justice on the other side in cases expected to be 5-4. (I don't think that's your goal, but I suspect it's often the goal of those asserting these arguments.) Everyone knows who the 9 Justices are, and they each hear every case. In close cases, we often know how they'll vote, and how the removal of a particular Justice would change the outcome. Given the inability to replace a Justice with another Justice of the same views, I fear that the calls for an ethics standard are mostly about ways of trying to get certain Justices off the Court for certain cases to increase the odds of winning, not really about ethics.

Am I too cynical? Very interested in your thoughts.

[Steve L.]

I wouldn't call it cynicism, Orin, but I think your fears are overstated.

First, recusal is already governed by a federal statute (which, btw, was modeled on the Model Code of Judicial Conduct), so a code would not really change anything in that regard.

Likewise, I doubt that the court could ever be under more scrutiny than it is currently.

Finally, a well articulated code would actually preempt some of the nonsensical criticisms that are regularly flying back and forth, because the public would finally know what to expect.

Of course, I don't deny that Murphy and Slaughter have partisan motives (as I noted above), but that alone does not make adoption of a code a bad idea.

In my non-partisan opinion, the resistance to an ethics code is just one more example of the court's long-standing resistance to transparency: no cameras in the courtroom, no explanations of recusal (and non-recusal)decisions, and no ex ante provisions on ethics issues. I think democracy demands more from that branch of government.

Steve

[John Steele]

Orin's comments are right on the money, I'm afraid. Because of the legal ethics blog I publish at, I've been bombarded with ultra-partisan pitches to go after particular SCOTUS justices and to push for this ethics code (as part of the very same pitch). It's a bad idea and will be used relentlessly to de-stabilize the court, regardless of which side of the spectrum enjoys the majority. There's nothing broke right now and a "fix" would break things.

[Orin Kerr]

Steve, thanks for the response. Two thoughts:

1) It strikes me as naive to think that the Justices would not be under more scrutiny with a code in place. If there were an ethics code with actual bite, I fear there would be a team of private investigators tasked with tracking each of the Justices 24/7, paid for by wealthy donors on the other side, trying to discover any possible ground by which any of the provisions had been violated. It could be like presidential campaigns doing opposition research, but a permanent presence in the lives of every Justice instead of a one-time event. In my non-partisan opinion, the resistance to an ethics code is based on realistic concerns that this is the world we're in.

2) The alternative is that maybe the ethics code would have no bite and would just be purely symbolic. But I don't see the point of that.

[Steve L.]

I am not sure what you mean by "bite," Orin, but no court-adopted code could be enforceable other than by the justices themselves.

Presumably, the justices already have ethical standards. My point is that they should let everyone know what they are -- ahead of time, so that controversies will not be subject to ex post rationalization. That is a pretty standard conception of the role of ethics.

If SCOTUS were to adopt a code, it would almost certainly be a version of the judicial conference Code of Conduct (with SCOTUS specific modifications). Why do you think that would encourage more private investigators than are already on the case? Robert announced in 2011 that SCOTUS already looks to the Code for guidance.

[Orin Kerr]

Steve, it's because the language of the judicial conference Code of Conduct is both vague and broad. Outside the Supreme Court, such vague and broad language usually isn't a problem because there is no reason to push the language to extremes. You never know what lower court judge will be on which case, and few are repeat players, so there's little incentive to go after a particular judge. But if you formalize that vague and broad language in the hyperpartisan environment of high-profile Supreme Court cases, it seems very unlikely to me that the effect would be the same.

[Bernie Burk]

Thanks to all for a very thoughtful and thought-provoking discussion.

One (and only one of several) features of this issue that I find challenging to assess is the fact that, unlike every other Code of Judicial Conduct I know of that is currently in effect, this Code likely would have NO provisions that were anything other than precatory. That is, "modern" codes of judicial conduct of which I'm aware all have at least some provisions that provide an enforceable remedy for violation, typically recusal if the conduct is discovered in time. When we consider a code of ethical conduct for the US Supreme Court, very vexing questions about who would find the facts, who would interpret and apply the rules, and how any remedies would be enforced seem overwhelmingly likely to create a code of conduct in which all that the citizenry and affected parties can do is argue about whether a particular Justice is in compliance on a particular occasion.

Given the necessarily vague standards applicable to other judges in many circumstances (for example, whether the judge's impartiality might reasonably be questioned), and how unlikely it is that anything much more determinative would be promulgated for the Supreme Court for many really important questions, the best you're likely to get in any close case is an argument that inferior federal judges have been recused or have recused themselves under arguably similar (and arguably different) standards and circumstances. So Steve, isn't the ambition of knowing clearly in advance what's expected (or knowing clearly at the time that an understood norm is being violated) a little chimerical?

Bernie

[Steve L.]

That is a fair question, Bernie. A SCOTUS code would not be enforceable, but it would be declaratory and informative, which I think is sufficient reason to enact one.

For example, the Judicial Conference's Code of Conduct prohibits certain charitable fund raising activities, so we know that lower court federal judges are not supposed to solicit money, even for worthy causes. Do SCOTUS justices plan to observe the same limitation? I think that the public deserves to know -- in advance of any controversy.

Same goes for accepting loans on unusually favorable terms. Lower court judges are not allowed to do it. Why wait for a controversy to find out if SCOTUS justices believe they are subject to the same limitation (I am not talking about anything criminal or impeachable; just stuff that is considered too unseemly for a judge to do).

Frankly, I think that recusal is a distraction from this issue (although one frequently raised by partisans on both sides). You are concerned about the vagueness of "whether the judge's impartiality might reasonably be questioned," but that is already the standard in the federal recusal statute, so its inclusion in a code would not add any complications.

As far as I am concerned, a SCOTUS code could omit recusal provisions completely, or simply cross reference the statute. I am much more interested in the more mundane issues.

[Bernie Burk]

Steve,

Your observations are very fair. But (hopefully without belaboring this), a few big questions continue to nag at me:

(1) You are undoubtedly right that the code you favor would help clarify what you call "mundane issues," that is, some categories of conduct that inferior federal judges already can't engage in that fall short of crimes or (perhaps) impeachable offenses. But doesn't it matter that those questions have never arisen with respect to a Supreme Court Justice? You could answer "not yet," or "not that we know of," but I think we'd know in the current panoptic age if a justice were soliciting charitable contributions that are forbidden to inferior federal judges, or enjoying sweetheart loans; and I think they don't because they already know it's so indecorous and would be wildly controversial. That's not a reason NOT to have such a code, of course, but it isn't much of a reason to have one either.

(2) As a matter of separation of powers, what does it mean if Congress says that Justices of the Supreme Court "should" not engage in certain conduct of the kind we're discussing here? I imagine that if (say) a Justice were soliciting charitable contributions for a favored cause, the public and political discourse would be somewhat different if Congress had enacted (and the President had signed) a Code of Conduct condemning it (without remedy) beforehand. Of course, Congress could always do that after the Justice was caught with his or her hand out in this fashion, with the same kind of results if he or she didn't then stop.

(3) Which raises a related point: Especially given the indeterminacy of a lot of the questions such a code would be likely to raise, doesn't it pose the risk of being almost immediately reduced to a blunt instrument for opportunistic demands for some result (probably recusal in particular cases) on a purely partisan basis? And to be clear, I don't imagine that left or right would be more likely to succumb to that temptation. But I do fear it spawns much more mischief than it prevents.

Bernie

[SL]

Keeping things short:

(1) mundane does not mean trivial; every other court in the U.S. has considered it sufficiently important to adopt rules governing things such as charitable contributions, political endorsements, and business activities. If nothing else, a Code provides a statement of uniform practices, which would be far preferable to after-the-fact rationalization.

(2) The Supreme Court Ethics Act does not prescribe any particular code or provisions. It leaves the content entirely up to the justices, and there is no enforcement mechanism. It simply requires the justices to announce the standards to which they hold themselves. Given that they have life tenure, that strikes me as a very small demand.

[SL]

One more thing: I think it is wrong to assume that the justices will instinctively recognize problems and therefore avoid them. Abe Fortas thought it was just fine to write Lyndon Johnson's inaugural address in 1969. If you asked him, he would have insisted there was nothing unethical about it (his resignation was for other reasons, including accepting payments from the Wolfson Foundation).

Today, none of the justices would consult so closely with the executive branch -- or would they? When did SCOTUS ethics change, and how do we know the extent of the change? A code would address such questions before they became problematic.

[Brian Frye]

I'm inclined to agree with Orin Kerr & would suggest considering the political use of ethics codes in relation to state supreme courts. For example, Washington State AGs have been pretty aggressive in bringing ethics complaints against state supreme court judges for (at least arguably) political reasons.