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LDAD’s Lauren Rikleen: Supreme Court Code of Conduct Must Demand Accountability
January 25, 2024
The conduct of U.S. Supreme Court justices has become a subject of heightened scrutiny over the past year,.jpg?width=300&height=420)
with revelations about the social relationships between members of the Court and influential business leaders generating broad-based criticism and calls for the Court to adopt a binding code of conduct.
In March 2023, the nonprofit Lawyers Defending American Democracy (LDAD) partnered with the Project on Government Oversight (POGO) to create a comprehensive draft code of conduct for the Supreme Court. Eight months later, the Court issued its own nonbinding Code of Conduct for Justices of the Supreme Court of the United States.
Although the Supreme Court’s document largely drew upon the Code of Conduct for United States Judges, it differs in some significant and potentially problematic ways, according to LDAD. Here, LDAD Executive Director Lauren Stiller Rikleen talks about what an effective code for U.S. justices could look like.
How have you approached assessment of the Supreme Court’s code of conduct?
Chief Justice [John Roberts], when he released their code, said that the SCOTUS code of conduct was based, in large part, on the code of conduct that applies to the federal judiciary. The chief further noted that there was a long tradition of rules and ethics binding SCOTUS, even as the federal judicial code had never been formally adopted by the Court. It was also significant that the ABA House of Delegates passed a resolution calling upon the Supreme Court to implement a binding code of conduct, language that was not included in the code released by the chief justice.
So, I’ve been comparing the code of conduct that applies to the judges of the federal bench, the [document] that the Supreme Court issued, and the one that LDAD and POGO produced. Our code was very aspirational, looking at contemporary circumstances and concerns. We began with the code governing federal judges, but we also considered the places where that code fails to address emerging issues.
Our proposed code is more comprehensive than the others in that it is more modern. It addresses problems that we are seeing today. The federal judicial code of conduct has been around for a while, and the Supreme Court code, which is based on the federal version, takes a lot of liberties. It isn’t an adoption of the federal court code of conduct … it is the adoption of some aspects of it, but the Court also chose not to adopt some elements and chose to change the wording of others.
What are some examples of places where the Supreme Court code of conduct departs from the federal code?
There are places where the Supreme Court’s code of conduct presents a significant departure from the federal code on which it was based. Canon 2B of the federal judicial code is a provision on outside influence that says a judge should not lend the prestige of the judicial office to advance the private interests of the judge or others, nor convey or permit others to convey the impression that they are in a special position to influence the judge — classic language about the avoidance of improper outside influence. But in the Supreme Court’s code of conduct, they add a “knowing” requirement.
This is significant because we all recall the stories that were published last summer about expensive trips and gifts from wealthy benefactors. Why did SCOTUS feel it needed to add a qualifier here? Obviously, the additional element makes it harder to allege a violation of the requirement.
Another significant departure involves the use of the word “shall.” The model code produced by LDAD and POGO favored the use of the word “shall” in its canons to make it clear that these should be required standards. The Supreme Court’s code generally uses the word “should,” which tracks with the federal code, although [the former has] a further exception when it comes to disqualification.
Canon 3C of the Code of Conduct for United States Judges says that a judge “shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” [Emphasis added.] The disqualification section of the Supreme Court’s code begins with a presumption that the justices are impartial. Moreover, instead of the word “shall,” as used in the federal code, the SCOTUS code states that a justice should disqualify himself or herself in a proceeding in which the justice’s impartiality might reasonably be questioned.
But then the code adds peculiar language that further narrows the circumstances under which this reasonableness test could serve to disqualify a justice. Specifically, the SCOTUS code adds that a reasonable question regarding impartiality only arises when an “unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” One can only imagine who they have in mind as the unbiased, reasonable, and fully aware person who would be the arbiter of whether disqualification is appropriate.
Basically, SCOTUS has made the disqualification standard much more difficult. Why did they feel that they needed these added elements? When you put it all together, it doesn’t seem like disqualification will be very likely in the future.
In the federal code, there is a transparent process for disqualification. The Supreme Court does not offer a similar process. Moreover, its code devotes extensive commentary defending the justices’ duty to sit. The so-called rule of necessity can even override the disqualification of a justice. This seems based on the theory that, if a federal court judge is disqualified, another judge can more easily fill in, but in the Supreme Court, a disqualification would result in a smaller number of judges hearing the case. It’s interesting that there was no outcry over this duty to sit during the year that the Senate allowed the Merrick Garland nomination to languish. Yet the SCOTUS code of conduct places a significant emphasis on this duty to sit that, again, makes it easier for the justices to avoid disqualification.
[Canon 4H of] the federal code has a clause that allows judges to accept compensation and reimbursement for expenses for law-related and extrajudicial activities. Reimbursement is limited to actual costs, and any additional payment is considered compensation. The Supreme Court’s version allows for reimbursement of actual or reasonably estimated costs. Here, too, accountability becomes difficult, particularly if a justice is under scrutiny for financially questionable activities. In what business can you seek expense reimbursement based on an estimate of your expenditures? Why did the Supreme Court here fail to at least track the language of the federal code with respect to expense reimbursement, making the same rules applicable to all members of the federal judiciary? Why did they change that language?
How could the Supreme Court’s code of conduct be improved?
Once you get into the weeds of it and compare the code produced by the Supreme Court to the federal judicial code on which it was based, or our own more aspirational code, you begin to see significant gaps and flaws. I’m concerned that the public, having heard that the Supreme Court has issued a code of conduct, will believe that the matter is resolved. But the Court’s code is seriously flawed, and those flaws need to be addressed.
There is no process for filing a complaint or enforcing a violation of the code in the document. That’s a huge frustration. Our draft code of conduct recognized that there are many different ways to approach enforcement, and we didn’t propose one particular manner. Should Congress enforce a code of conduct? Should the chief justice be the one to resolve conflicts? Should there at least be a process, as there is for federal judges, for the publication of formal advisory opinions on ethical issues? There are lots of different ways to do it, but there should certainly be complaint and enforcement mechanisms.
Moving forward, advocates must demand accountability for the lapses and departures found in the Supreme Court’s code of conduct. To appropriately address the concerns of the public and restore confidence in the judiciary, the code needs to include more stringent guidelines for recusal and for conduct that creates an appearance of impropriety. The Supreme Court should also have more rigorous disclosure requirements and provide greater transparency in its decision making. The code developed by LDAD and POGO addressed these elements.
