Out of all of the courts in the United States, the Supreme Court is the only one that does not have a code of ethics. There have been several instances of ethical lapses by the Supreme Court Justices that have drawn the attention of the public: Justice Clarence Thomas’s failure to report travel, real estate, and private school tuition that were financed by a wealthy Republican donor over the last few years; Justice Sonia Sotomayor’s staff that’s funded by taxpayers forcefully pushing colleges to buy her books, and Justice Brett Kavanaugh’s sexual assault allegations before sitting on the bench. Are Justices above the law? What actions of a Justice cross the line, and does the timing of these actions matter? It is hard to articulate answers for these questions, as no ethical guidelines support the United States’ highest Court. This article will show two solutions for addressing these constitutional and moral questions: Congress mandating the Supreme Court to follow the Code of Conduct established by the Judicial Conference, or the Justices adopting a code of ethics and binding to it themselves. I will argue for the latter solution.
The Judicial Conference of the United States was established by Congress in 1922. It comprises the current Chief Justice of the United States, the Chief Judge of each judicial circuit, the Chief Judge of the Court of International Trade, and a district judge from each regional judicial circuit. In 1973, the organization introduced the Code of Conduct for United States Judges. It consists of five ethical canons that apply to “United States circuit judges, district judges, Court of International Trade Judges, Court of Federal Claims Judges, bankruptcy judges, and magistrate judges.” The Supreme Court is not legally bound by this agreement, but released a statement earlier this year that explains their voluntary ethical commitments. However, ethics reformers believe that more is needed. When discussing the first solution, we must address whether Congress can mandate the Court to follow the guidelines.
Some of the Justices have weighed in. Chief Justice John Roberts, now the head of the Judicial Conference, argues that Congress lacks the power to force the Court to follow the Judicial Conference’s Code of Conduct. In a 2011 end-of-the-year Federal Judiciary Report, the Chief Justice reasoned that “Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.” Justice Alito, in a Wall Street Journal op-ed, said that Congress lacks the power to regulate the Supreme Court, “period.” In short, these views are more concerned about the separation of powers between the branches of our government.
Those on the other side of the debate argue that Congress can theoretically mandate the Justices to adhere to the Code of Conduct for United States Judges. Congress already regulates the administrative tasks of the Supreme Court, such as the Justice’s salary, the number of Justices on the bench, Supreme Court oaths, and the budget for the Court. While these acts are not explicitly stated in the Constitution, we understand that the Necessary and Proper Clause affords Congress the power to legislate any laws necessary for carrying out their enumerated powers and other powers of the federal government. Ethics reformers say that this provides Congress the ability to mandate a code of ethics.
However, when considering the first proposed solution, we encounter a roadblock: while Congress can pass legislation, the Justices can rule on its legality. The legislation would also have to survive the Senate, and most times, it falls along party lines that are nearly evenly split. The first solution is thus inadequate to address these Constitutional and ethical questions.
This does not mean that the Supreme Court is ungovernable, however. Justices do, in fact, have to follow specific rules. The Ethics in Government Act of 1978 requires Justices to submit financial disclosures each year, and another federal law states that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.” This is called recusal. Individual justices determine themselves whether they should recuse themself from a case. However, many citizens have pointed out the ethical concerns of Justices like Thomas and Sotomayor not recusing themselves from matters where their impartiality may be questioned. Could it be that in instances like these, Justices are above the law?
The second solution can be best explained with recusal in mind. When a case is before the Supreme Court, each Justice has their decision and the reasoning behind it reviewed by the rest of the Court. What is different about this federal law over recusal? Nothing. Justices should review recusals and questions of impartiality as a Court, not as individuals. The job of any Justice or judge is to interpret the laws, so the Supreme Court, as the final arbiter of the law, must interpret this law for lower courts and the people to better define the standards of impartiality for the last Court.
This example brings the second solution to light. I sympathize with Justice Alito in his statement that the Supreme Court was not created by Congress; that is my point. The Supreme Court is unique because it is the only court created by the Constitution; thus, it should be held to the highest standard. No agency, branch, or committee can set this standard besides the nine Justices. In addition, most of the Supreme Court’s power comes from the confidence of our citizens. “The power of the people is superior to [the judicial branch].” The apparent hesitation of the Justices to create their own code of ethics seems immoral in the eyes of the people and the Constitution, because it suggests that the Justices can police themselves, when it ought to be moral law. The Supreme Court is the highest, and therefore, it must bind itself to the highest ethical standards of all courts—if not for the people, then for moral law.