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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

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.