Supreme Unaccountability: The Nine Federal Judges to Whom No Code of Ethics Applies

  • August 20, 2014
  • 26 Stan.L.& Pol'y Rev. 9

The Supreme Court’s greatest assets are its integrity and the public’s trust. Yet while the Code of Conduct for United States Judges binds every lower federal court judge, and every state judge is subject to a corresponding code of ethics, the nine justices of the Supreme Court are not subject to any binding code of ethics. Both to help ensure ethical conduct by the justices and to reassure the American people of the integrity of the Court, our highest court must be held to a code of conduct.

With that in mind, I, along with other Members of the House and Senate, legal ethics scholars, and legal advocacy groups, have over the past four years publicly urged the Supreme Court to voluntarily adopt a binding code of ethics. In his 2011 Year-End Report on the State of the Federal Judiciary, Chief Justice Roberts responded to mounting calls for ethics reform at the Supreme Court, declaring, “The Court has had no reason to adopt the Code as its definitive source of ethical guidance.”[1]

However well-intentioned, Roberts’ dismissal is not only an inadequate response to the concerns that have been raised, but also fails to address the growing evidence that public trust in the Supreme Court is eroding. Last year, Pew Research Center reported that Americans’ approval of the Court had edged below fifty percent for the first time in their nearly three decades of polling.[2] Similarly, Gallup reported in 2013 that Americans’ approval of the Court was below fifty percent and the percentage approving had “fallen below the majority level in the five polls Gallup has conducted since 2011.”[3]

Further, a May 2014 Democracy Corps and Greenberg Quinlan Rosner Research survey found that only thirty-five percent of Americans gave the Supreme Court a positive job performance review.[4] The survey also tested seven possible reforms to the Court and found that “Americans show enthusiastic support for making the [C]ourt a more transparent and accountable body,” as nearly every proposal was overwhelmingly supported.[5] Among these proposals, requiring the justices to adhere to the Code of Conduct for U.S. Judges was the most popular, with eighty-five percent of Americans supporting and seventy-two percent “strongly” supporting the reform.[6]

Undoubtedly, many factors contribute to the public’s opinion of the Court. Nonetheless, it would appear quite unlikely that widely reported incidences of questionable conduct by some justices has not had some negative impact on the public’s trust. It is vitally important to our democracy that Americans believe that the administration of justice is fair and that the justices act with integrity and impartiality.

To address this problem, I, along with Senator Chris Murphy of Connecticut, have introduced a commonsense measure that could help reverse the decline in public confidence in the Supreme Court. The Supreme Court Ethics Act requires the Court to adopt clear, written rules that establish standards by which justices’ behavior can be guided and assessed by both themselves and the American people. And the legislation accomplishes this end in the most deferential way possible. It does not presume to write guidelines for the Court; it merely instructs the Court to write its own ethics code.

I.     The Code of Conduct for United States Judges

Created in the wake of judicial scandals, the guidelines contained in the Code of Conduct for United States Judges exist to ensure that the public has faith that judicial decision-making is based on the facts and the law, not politics and outside interests. Its intent is to uphold the integrity and independence of the judiciary by demonstrating that those meting out justice are scrupulous in staying free of even the appearance of outside influence or bias.

The Code sets forth five Canons—simple rules that all judges should be able to follow:

  • A Judge Should Uphold the Integrity and Independence of the Judiciary
  • A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities
  • A Judge Should Perform the Duties of the Office Fairly, Impartially, and Diligently
  • A Judge May Engage in Extrajudicial Activities That Are Consistent with the Obligations of Judicial Office
  • A Judge Should Refrain from Political Activity

II.     The Inadequacies of the Current Approach to Ethics

Chief Justice Roberts asserts that “the Court has had no reason to adopt the Code as its definitive source of ethical guidance.”[7] He fails to acknowledge the significant harm to our nation’s judicial system when one set of ethical rules formally binds lower federal judges while Supreme Court justices, formally rejecting the need to hold themselves to these rules, merely consult the Code as one of many sources of non-binding ethical guidance. The lack of any binding rules gives rise to the perception that the justices believe, by sheer virtue of their office, that short of impeachment their personal and professional behavior is not subject to question—that even if the only persons positioned to hold them accountable to a written code were themselves, that small measure of accountability would be too great.

Despite Chief Justice Roberts’s assurance that “All members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations,”[8] the actions of some justices suggest that they either do not understand, or wholly disregard, the Code’s boundaries. Indeed, in recent years there have been widely reported incidences of justices lending the prestige of their office to promote fundraisers for third-party entities,[9] attending political strategy sessions sponsored by high-profile political donors,[10] failing to report family income from politically active groups,[11] and failing to recuse themselves when deciding cases where there exists—or at the very least there appears to exist—a conflict of interest.[12]

For example, Justices Antonin Scalia and Clarence Thomas were “featured” at closed-door, invitation-only political fundraising and strategy sessions hosted by Koch Industries, the second-largest privately-held corporation in the United States and a major political player that directly benefited from the Citizens United decision.[13] According to the invitation for the 2011 retreat: “At our most recent meeting . . . our group heard plans . . . to activate citizens against the threat of government over-spending and to change the balance of power in Congress this November.”[14]

Moreover, Justice Samuel Alito headlined a 2009 fundraiser for the conservative Intercollegiate Studies Institute (ISI),[15] attended American Spectator’s annual fundraiser gala in 2010, and headlined the same event in 2008.[16] Tickets to the 2010 gala ranged from $250 to $250,000, and the event raised more than $245,000.[17]

The activities listed above would be prohibited if the justices were required to abide by the Code of Conduct for United States Judges, which is quite clear on these issues. Canon 4C states that “a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of the judicial office for that purpose.”[18] Commentary to Canon 4C specifically states, “A judge may attend fund-raising events of law-related and other organizations although the judge may not be a speaker, a guest of honor, or featured on the program of such an event.”[19] Additionally, Canon 5 notes that “[a] judge must refrain from all political activity.”[20]

Additionally, a 2011 investigation conducted by The New York Times revealed that Justice Thomas, on several occasions, may have benefited from use of a private yacht and airplane owned by Harlan Crowe, Dallas real estate magnate and major contributor to conservative causes.[21] This travel was never disclosed as a gift or travel reimbursement on Justice Thomas’s federal disclosure forms as required by the Ethics in Government Act of 1978.

These instances, as well as further documented reports of justices receiving gifts or failing to disclose income from individuals and organizations who often have an interest in matters before the courts,[22] call into question the Court’s impartiality. Canon 4D of the Code of Conduct incorporates regulations providing that “[a] judicial officer or employee shall not accept a gift from anyone who is seeking official action from or doing business with the court.”[23]

As Professor Stephen Gillers of New York University School of Law and Professor Charles Geyh of Indiana University’s Maurer School of Law wrote in 2013, “there is an obvious difference between committing to abide by a code of ethics and consulting a code that a justice is free to disregard.”[24] Although well-documented examples of disconcerting behavior has been limited to some of the more conservative justices, absent a binding code of ethics, the liberal-leaning justices are equally as free to disregard the guidance found in the Code in the future. Incidents such as these undermine the integrity of the entire judiciary, and they should not be allowed to continue.

III.     The Supreme Court Ethics Act

Chief Justice Roberts may very well be correct in his argument that “because the Code was developed for the benefit of the lower federal courts, it does not adequately answer some of the ethical considerations unique to the Supreme Court.”[25] However, though the Court may have good reason to refuse to adopt the Code of Conduct for U.S. Judges, that does not justify the failure to adopt any code of conduct. Why should lower courts be subject to a binding code of ethics while the Supreme Court is not?

The Supreme Court is undeniably unique by its very nature. The operations and dynamics of the Court and the ethical considerations faced by its members are known better by no individuals than the justices themselves, which is why the Supreme Court Ethics Act merely requires that the Court “promulgate a code of ethics for the Justices of the Supreme Court that shall include the 5 canons of the Code of Conduct . . . with any amendments or modifications thereto that the Supreme Court determines appropriate.” By allowing the Court to write its own ethics code, utilizing the highest standards—the ethical precepts that are contained in the Code of Conduct for United States Judges—as a template, the Supreme Court Ethics Act refrains from prescribing specific rules and defers to the judgment of the Court.

Most Justices appointed to the Supreme Court come directly from Federal Circuit Courts,[26] where they were subject to the Code of Conduct; therefore, they are already familiar with and have been in compliance with the requirements of the Code. Accordingly, adoption of an identical or similar Code by the members of the Supreme Court should not unduly burden members of that Court and certainly would not serve as any impediment to their complete and robust service on the Court.

Some observers, including the Chief Justice,[27] have questioned—or at least alluded to—whether Congress has the authority to impose such requirements on the Supreme Court. Professor Amanda Frost recently addressed the constitutionality of Congress’s authority to regulate the Justices’ ethical conduct and concluded, “Congress has considerable leeway to regulate the Justices’ ethics, just as it has long exercised authority to decide other vital administrative matters for the Court.”[28]

Finally, in a 2012 letter, 212 legal scholars jointly urged the Court to adopt a binding code of conduct,[29] and the Supreme Court Ethics Act has so far garnered 104 cosponsors in the House of Representatives and six in the Senate, including over a fifth of the members of the Senate Judiciary Committee.[30]

Conclusion

As the Court prepares for yet another term during which a number of the cases heard and decided will have a profound impact on all Americans, we cannot afford to risk a further erosion of trust in this esteemed body’s commitment to the rule of law. Whether we agree or disagree with the Court’s decisions, it is vitally important that every American believe that the administration of justice is fair and that the justices act with the highest possible standards of integrity. For the integrity of our courts, and the public’s trust in our democracy, the highest court in the land must be bound by a set of ethical standards.



[1]. Supreme Court of the U.S., 2011 Year-End Report on the Federal Judiciary 5 (Dec. 31, 2011), available at http://www.supremecourt.gov/publicinfo/year-end/2011year-endreport.pdf.

[2]. Supreme Court’s Favorability Edges Below 50%, Pew Research, July 24, 2013, http://www.people-press.org/2013/07/24/supreme-courts-favorability-edges-below-50.

[3]. Andrew Dugan, Americans Still Divided on Approval of U.S. Supreme Court, Gallup, Oct. 4, 2013, http://www.gallup.com/poll/165248/americans-still-divided-approval-supreme-court.aspx.

[4]. Memorandum from Stan Greenberg et al., Democracy Corps, Broad Bi-Partisan Consensus Supports Reforms to Supreme Court 1 (May 7, 2014), available at http://www.democracycorps.com/attachments/article/979/DCorps%20SCOTUS%20Memo%20FINAL%20050614.pdf.

[5]. Id. at 4.

[6]. Id. at 5.

[7]. See Supreme Court, supra note 1.

[8]. Id. at 4.

[9]. Andrew Rosenthal, Step Right Up. Buy Dinner with a Justice, N.Y. Times, Nov. 10, 2011, http://takingnote.blogs.nytimes.com/2011/11/10/step-right-up-buy-dinner-with-a-justice.

[10]. Sam Stein, Justices Scalia and Thomas’s Attendance at Koch Event Sparks Judicial Ethics Debate, Huffington Post, May 25, 2011, http://www.huffingtonpost.com/2010/
10/20/scalia-thomas-koch-industries_n_769843.html.

[11]. Kim Geiger, Clarence Thomas Failed to Report Wife’s Income, Watchdog Says, L.A. Times, Jan. 22, 2011, http://articles.latimes.com/2011/jan/22/nation/la-na-thomas-disclosure-20110122.

[12]. Elizabeth Flock, New Financial Forms Show Clarence Thomas’s Wife Continued to Lobby Against Healthcare in 2011, U.S. News & World Report, July 2, 2012, http://www.usnews.com/news/blogs/washington-whispers/2012/07/02/new-financial-forms-show-clarence-thomass-wife-continued-to-lobby-against-healthcare-in-2011.

[13]. Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010).

[14]. Letter from Charles G. Koch, Understanding and Addressing Threats to American Free Enterprise and Prosperity 1 (Sept. 24, 2010), available at http://images2.american
progressaction.org/ThinkProgress/secretkochmeeting.pdf.

[15]. See The Code of Conduct for U.S. Judges Should Be Applied to the Supreme Court, Alliance for Justice 6 (2011), available at http://www.afj.org/wp-content/uploads/2013/11/code-of-conduct-full-report.pdf.

[16]. Lee Fang, Exclusive: Supreme Court Justice Samuel Alito Dismisses His Profligate Right-Wing Fundraising as “Not Important”, Think Progress (Nov. 10, 2010) http://thinkprogress.org/2010/11/10/sam-alito-republican-fundraiser.

[17]. Id.

[18]. Code of Conduct for United States Judges, U.S. Courts, http://www.uscourts.gov/
RulesAndPolicies/CodesOfConduct/CodeConductUnitedStatesJudges.aspx (last visited July 13, 2014).

[19]. Id.

[20]. Id.

[21]. See Mike McIntire, Friendship of Justice and Magnate Puts Focus on Ethics, N.Y. Times, June 19, 2011, http://www.nytimes.com/2011/06/19/us/politics/19thomas.html.

[22]. See Flock, supra note 12.

[23]. Code of Conduct, supra note 18.

[24]. Charles Geyh & Stephen Gillers, The Supreme Court Needs a Code of Ethics, Politico, Aug. 8, 2013, http://www.politico.com/story/2013/08/the-supreme-court-needs-a-code-of-ethics-95301.html.

[25]. Supreme Court, supra note 1, at 5.

[26]. See Susan Navarro Smelcer, Cong. Research Serv., Supreme Court Justices: Demographic Characteristics, Professional Experience, and Legal Education, 1789-2010, at 17 (2010), http://assets.opencrs.com/rpts/R40802_20100409.pdf.

[27]. Id. at 6.

[28]. Amanda Frost, Judicial Ethics and Supreme Court Exceptionalism, 26 Geo. J. Legal Ethics 443, 479 (2013).

[29]. Slaughter, Murphy, Blumenthal and Whitehouse Introduce Supreme Court Ethics Bill, Congresswoman Louise M. Slaughter, Aug. 2, 2013, http://www.louise.house.gov/
press-releases/slaughter-murphy-blumenthal-and-whitehouse-introduce-supreme-court-ethics-bill.

[30]. See Cosponsors, H.R. 2902 – Supreme Court Ethics Act of 2013, Congress.gov, https://beta.congress.gov/bill/113th-congress/house-bill/2902/cosponsors (last visited July 13, 2014).