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Supreme Court Ethics Reform

Summary: Today, the nine justices on the Supreme Court are the only U.S. judges — state or federal — not governed by a code of ethical conduct. But that may be about to change.

Published: September 24, 2019
Supreme Court Ethics Reform
Getty/Drew Angerer

Justice Elena Kagan recently testified during a congressional budget hearing that Chief Justice John Roberts is exploring whether to develop an ethical code for the Court. This was big news, given that the chief justice has previously rejected the need for a Supreme Court ethics code.

In fact, however, the Supreme Court regularly faces challenging ethical questions, and because of their crucial and prominent role, the justices receive intense public scrutiny for their choices. Over the last two decades, almost all members of the Supreme Court have been criticized for engaging in behaviors that are forbidden to other federal court judges, including participating in partisan convenings or fundraisers, accepting expensive gifts or travel, making partisan comments at public events or in the media, or failing to recuse themselves from cases involving apparent conflicts of interest, either financial or personal. Congress has also taken notice of the problem. The For the People Act, which was passed in March 2019 by the House of Representatives, included the latest of a series of proposals by both Republican and Democratic legislators to clarify the ethical standards that apply to the justices’ behavior.

Much of the Supreme Court’s power comes from the public’s trust in the integrity and fairness of its members. Controversies over the justices’ ethical choices threaten this trust at a time when faith in our democratic institutions is already low. In this era of hyperpartisanship, when confidence in the Supreme Court is imperiled by the rancor of recent confirmation battles and ongoing criticism from the president, the Court’s decision to adopt its own ethical reforms would send a clear and powerful message about the justices’ commitment to institutional integrity and independence. Moreover, voluntarily adopting a code (rather than waiting for Congress to impose one) could actually enhance the Court’s power by building the Court’s credibility and legitimacy with the public, thereby earning support for its future decisions.

This white paper provides a brief overview of the current judicial ethics framework and highlights three changes that the Court could adopt right now to bring clarity and transparency to the ethical standards governing the nation’s most powerful jurists:

  • adopting its own Code of Conduct;
  • establishing a regular practice of explaining its recusal decisions; and
  • strengthening its rules governing gifts and financial disclosures.

The justices’ embrace of these reforms would end the long-standing debate about why the nation’s highest court lacks the kind of written ethical code that is increasingly ubiquitous, not only for government officials but also in schools, private corporations, and many other organizations. It would also reestablish the U.S. Supreme Court as a beacon of accountability and rule of law at a moment when these core democratic principles are under attack, domestically and around the world.