SCOTUS: A ‘Statement of Principles’ is not a code of conduct

Most news outlets buried the lede when they reported that Chief Justice John Roberts declined Sen. Dick Durbin’s (D-Ill.) invitation to testify before the judiciary committee about ethics issues facing the Supreme Court. That was only to be expected, given the justices’ historic aversion to questioning about their internal operations. 

Much more significant is the Statement of Ethics Principles and Practices that Roberts attached to his letter, although it is unlikely to serve the purpose Roberts seems to have intended.

The court has never before issued such a broad statement of its “foundational ethics principles.” It is the first time in over 30 years that all nine justices have signed any public statement about their ethics practices. 

Why now? The inescapable conclusion is that the justices are reacting to the court’s plummeting approval and the increasing calls for the adoption of a comprehensive code of conduct.

As has become well known in recent years, the Supreme Court is the only court in the U.S. without a written ethics code. The U.S. Judicial Conference, with jurisdiction over the lower federal courts, promulgated a Code of Conduct for United States Judges in 1973, and every state court has since followed suit with some version of the American Bar Association’s Model Code of Judicial Conduct. Only the Supreme Court has steadfastly refused to adopt its own code, a position that has become increasingly untenable in light of recent revelations about justices’ failures to disclose all of their financial entanglements.

In that light, the Statement of Principles appears to be an attempt to head off the criticism. We may not have a code, the justices seem to say, but at least we have a statement, which is just as good.

Regrettably, however, the Statement of Principles falls far short of a comprehensive code. It fails to address, or even mention, numerous important ethics issues covered by the Judicial Conference code, such as political activity, solicitation of contributions, avoiding outside influence, ex parte communications and leaking information, public comments on pending cases and reporting misconduct, among others. The Statement of Principles does discuss avoiding the appearance of impropriety, but only in the context of teaching and speaking engagements.

Having gone as far as they did, it is a mystery that the justices still resist a comprehensive code of conduct. While it is true, as Chief Justice Roberts pointed out in his 2011 annual report, that the lower courts’ code cannot “adequately answer some of the ethical considerations unique to the Supreme Court,” that should not prevent the court from designing a code fitted to its own circumstances. The nine justices are extremely intelligent people who routinely adjudicate some of the most complex problems in American government and society. Writing a code of conduct should present no problem for them at all.

In other regards, the Statement of Principles is simply baffling. Concerning disqualification, for example, the statement defends the court’s long-standing practice in which “individual Justices, rather than the Court, decide recusal issues.” The justification is that any other approach “would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate.”

That is wrong for at least two reasons. First, if the majority believes that a justice should be recused, then the justice should not participate no matter how it affects the case. The alternative is to have an otherwise disqualified justice cast the deciding vote, which is obviously far worse.

Moreover, the rationale bizarrely suggests that some future majority might conspire to disqualify another justice simply to control the outcome of a case. Not only does that betray an astonishing mistrust of their successors, but it would be nonsensical for a majority to deviously disqualify a colleague when, by definition, there are already enough votes to prevail in the case.

Over the past several years, Democrats in the House and Senate have repeatedly proposed legislation that would require the Supreme Court to devise and adopt its own code of conduct. These efforts have thus far failed for lack of support from Republicans. Recently, however, a bipartisan bill was introduced by Sens. Angus King (I-Maine) and Lisa Murkowski (R-Alaska), making her the first Republican to sponsor legislation calling for a Supreme Court code of ethics.

In 2005, as John Roberts was about to become chief justice, I published what I believe was the first widely distributed article calling on the Supreme Court to adopt a code of conduct. It said, in part:

“In an age of increasing governmental transparency, it is eminently reasonable to ask the first chief justice to be appointed in the [21st] century simply to articulate the formal ethical standards for the Court.

The topic of judicial administration seldom evokes much passion. Professional judge watchers are usually concerned far more about the substance of decisions than about the internal operations of the courts, even at the highest level. But in fact, the next chief justice of the United States will have an opportunity to reform the Supreme Court’s own procedures for handling ethics questions, and now is a good time for the discussion to begin.”

I was wrong about the potential for passion, as recent heated controversies have shaken loose a nearly unprecedented response from the justices. But I was right about the timing. If the Supreme Court had adopted a code of conduct in 2005, or pretty much any time in the past 18 years, the issue would now be well behind them.

Steven Lubet is the Williams Memorial Professor at the Northwestern University Pritzker School of Law. He is the author of “Fugitive Justice: Runaways, Rescuers, and Slavery on Trial” and three other books on 19th century legal history.