I have a new essay at The Hill (after a month’s vacation) explaining why the ABA’s call for a Supreme Court Code of Conduct is, unfortunately, likely to be ignored by the Court.
Here is the gist:
Amid questions about its legitimacy, the Supreme Court must adopt a code of conduct
by Steven Lubet, Opinion Contributor – 02/20/23
The American Bar Association (ABA) has joined the chorus calling for the U.S. Supreme Court to adopt a code of conduct. In a resolution issued earlier this month, the ABA noted that “[E]very judge in every jurisdiction in the United States – city, county, state, tribal, territorial, and federal – is subject to a binding code of ethics that embodies basic judicial ethical,” except the justices of the Supreme Court.
The lack of a code is troubling, the resolution continued, because the absence of “clearly articulated . . . ethics for the justices of the Court imperils the legitimacy of the Court [and] potentially imperils the legitimacy of all American courts and the American judicial system, given the Court’s central role enshrined in our federal republic.” Nonetheless, the ABA resolution is unlikely to make any difference.
The justices, however, appear to have been unmoved. In his 2011 Year-End Report on the Federal Judiciary, Chief Justice Roberts insisted that the Court had no need for a definitive code because “Every Justice seeks to follow high ethical standards,” he wrote, adding that many “ethical considerations [are] unique to the Supreme Court.”
On Feb. 9, the Washington Post reported that the justices have actively considered the adoption of an ethics code, based on a “working document of issues” prepared by the Court’s legal counsel. According to the Post’s anonymous sources, the Court has “failed to reach consensus” despite years of discussion.
We do know that the justices have been loath to assert any authority over one another. Recusal motions, for example, are decided solely by the affected justice, with no review or rulings by the full court.
It is therefore likely that it would take only a single justice to veto the adoption of a Supreme Court code of conduct. Perhaps that has already happened. What does seem certain is that the ABA’s resolution will not change anything. If the justices seriously wanted a code of ethics, well, they would already have one.
You can read the entire essay at The Hill.