FINALLY! AN ETHICS CODE FOR SCOTUS

(Posted November 13, 2023) The New York Times reported a few minutes ago that the Supreme Court of the United States has adopted an ethics code for the justices. As I set out in an essay posted earlier this year, I believe that this move is overdue, and I’m glad the Court has done it; this will replenish the Court’s diminished supply of public trust.

I’m breezing through the new code to get a feel for it; I’ll periodically update this essay as I go along. The first thing I’ve noticed is that it liberally employs a word that wise heads in Virginia recently determined to be troublesome in the legal context: should. In comparison, the Canons of Judicial Conduct for the Commonwealth of Virginia employ must and may.

The many shoulds will leave a reader wondering how, exactly, this code will be interpreted and how it will be enforced. Even some of the aspirational statements will cause a little throat-clearing. For one example, here’s the text of Canon 4, subpart (A)(1)(e):

In deciding whether to speak or appear before any group, a Justice should consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public. Except in unusual circumstances, no such appearance will be created when a Justice speaks to a group of students or any other group associated with an educational institution, a bar group, a religious group, or a non-partisan scholarly or cultural group.

I invite you to compare this with this November 9 report in The Washington Post entitled, “Justice Barrett Gets Standing Ovation at Federalist Society Gala.” I’m not naïve enough to believe that this code will stop speeches to like-minded bar groups, even overtly political ones like the Federalist Society. But the juxtaposition of these stories reflects unfortunate timing.

Next, the announcement of this code contains words comparable to those in certain legislative enactments emanating from Capitol Square in Richmond, to the effect that “This act is declarative of existing law.” The justices insist these provisions “are not new” in that they are effectively the “equivalent of common law ethics rules” of long use at the Court, and are “a codification of principles that we have long regarded as governing our conduct.”

I strongly suspect that the promulgation of this code will spur plenty of op-ed calls for enforcement of the new-old provisions against the justices who made recent news with their very public missteps. I’m not holding my breath. My sense after having read through the code is that it won’t fully address public concern, especially if more examples surface. But one primary purpose of the Court’s issuing this code as assuredly to prevent another branch of government — that would be Congress — from stepping in to impose one, thereby triggering a jurisdictional turf war over whether one branch of government can tell another branch how to police itself.

Now that I’ve taken an hour to read through the code, I’m considerably less enthusiastic about it than when I first posted the news at about 2:30 this afternoon. I fear that much of the public will come to regard this as a sort of Potemkin village of judicial ethics, more for show than for enforceability. I do not, however, recommend that you hold your breath waiting for further explanation from the justices. I believe that this is the last we’ll hear from them on this subject for quite a while. (Update November 14: After a day of pondering the new code, I’m becoming more and more convinced that this announcement is just an insult to our intelligence. The policy has no teeth, no enforcement mechanism, and no way to even complain about anything. It’s less a code and more a set of gentle, nonbinding suggestions. I believe that the Court did this for one reason only: It was getting crushed in the court of public opinion, and needed to make a show of caring. To the Robes by the beautiful banks of the James, those justices who seem to take judicial ethics seriously: thank you, thank you.)