May 6, 2023 - 9:00 pm
Calls for a “formal” or “enforceable” code of ethics for the U.S. Supreme Court imply that no ethics rules or guidelines already exist, that Congress has the authority to impose such a code and that a genuine concern about ethics is the real motivation. None of this is true.
Every discussion of this issue should begin with a crucial distinction: The Constitution, not Congress, created the Supreme Court. Congress does not have the same authority over the Supreme Court as it does over courts that it has created. Simplistic assertions that the Supreme Court should be treated the same, therefore, are misguided at best, misleading at worst.
The federal law requiring recusal “in any proceeding in which (a judge’s) impartiality might reasonably be questioned” or in various specific circumstances applies equally to Supreme Court justices. So do the laws, such as the Ethics in Government Act, requiring federal officials to disclose many aspects of their finances.
Justices file disclosure reports the same way that lower court judges do. In addition, the Supreme Court in 1991 adopted a resolution agreeing to follow the Judicial Conference’s regulations regarding limitations on gifts and outside income that apply to lower court judges.
What remains is the observation that the Code of Conduct for United States Judges applies to the lower federal courts but not to the Supreme Court. The code comes from the Committee on Codes of Conduct of the Judicial Conference of the United States. Congress created the Judicial Conference in 1922 to guide and set policy for the courts that Congress creates. The Supreme Court is not one of them.
Even if it did apply to the Supreme Court, the code states that it “is designed to provide guidance to judges” and that many of its restrictions “are necessarily cast in general terms, and judges may reasonably differ in their interpretation.” As it turns out, Supreme Court justices do, in fact, consult the code for that very guidance in meeting their ethical obligations. In other words, the code serves the very same function for lower court judges and Supreme Court justices, even if it does not formally apply to the latter.
If all people hear is that the Supreme Court has no ethics code, they might easily think that justices can behave however they want. The fact that recusal and financial disclosure laws apply equally to Supreme Court justices, that they are on record committing to follow the same limits on gifts and outside income as all other judges, and that they even use the Code of Judicial Conduct in the same way that other federal judges do, changes everything. Hearing the rest of the story, in fact, might make Americans ask why that information is being kept from them by those demanding more restrictions on Supreme Court justices.
The answer is that this “ethics” campaign isn’t really about ethics. It’s about attempting to control the Supreme Court in order to change its decisions. In 2019, several Senate Democrats, led by Sheldon Whitehouse, filed a friend-of-the-court brief in a Second Amendment case with these ominous words: “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself,” particularly “on the urgent issue of gun control,” they wrote, before changes are forced upon it. Their message was clear: Change your decisions on such issues, or we will change you.
Whitehouse recently showed what some of those changes might include by introducing a bill to require the Supreme Court to produce its own ethics code. Under this legislation, a Supreme Court justice’s recusal decisions in individual cases could be countermanded by his own colleagues. Federal law has required judicial recusal since 1792, but it has never pitted judges against one another.
Also, under the Whitehouse bill, any individual anywhere could file a complaint “alleging that a justice of the Supreme Court has violated the code of conduct” that the bill requires. Each complaint would trigger review by a “judicial investigation panel” of five randomly chosen chief judges of the U.S. Court of Appeals’ 13 circuits. Those panels could hold hearings, issue subpoenas and issue orders. Imagine the torrent of complaints certain to be filed against every justice.
Alexander Hamilton wrote that the “complete independence” of the judiciary is “peculiarly essential” in our system of government. This “ethics” campaign is a smokescreen, a misdirection driven by those who instead consider that independence an obstacle to be overcome.
Thomas Jipping is a senior legal fellow in The Heritage Foundation’s Meese Center for Legal and Judicial Studies. He wrote this for InsideSources.com.