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April 27, 2015


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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.


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?


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


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.



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.


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.

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