The March 21 hearings on President Biden’s Supreme Court nominee provide an opportunity to help rebuild public faith in the country’s foremost judicial institution. Senators should seek the nominee’s views on the Supreme Court subjecting itself, for the first time, to a judicial code of conduct.
As now-deceased New York federal Judge Irving Kaufman once wrote, “The Court’s only armor is the cloak of public trust.” It is best ensured in government by accountability to written rules of conduct in which the public can believe.
To date, the Court has rejected an ethics code for its members, including the Code of Judicial Conduct that was put in place in 1972. While that code applies to all federal judges, not so for Supreme Court justices. To be sure, the Supreme Court is unique. That, however, does not justify it excepting itself from a written set of ethical rules adapted to its special circumstances.
On Feb. 3, 25 legal ethicists wrote to Chief Justice John Roberts: “[A] written Code, even if primarily aspirational, would have a broad salutary impact, assisting current and future members of the Court to transparently address potential conflicts and other issues in a way that builds public trust in the institution.”
A decade ago, Chief Justice Roberts said that a code of ethics was unnecessary for justices: “[T]he Court has had no reason to adopt the Code of Conduct as its definitive source of ethical guidance.” Every justice, the Chief Justice wrote, refers to the Code informally and “seeks to follow high ethical standards.’” Of course, no one would reasonably use that rationale for eliminating ethical codes for other judges or lawyers, most of whom also seek to follow high ethical standards.
Significantly, self-imposed standards have failed Roberts’ test. For example, adopting a code would likely lead members of the Court to refrain from taking travel junkets paid for by private sponsors, as justices appointed by presidents of both parties have done.
Canon 2 in the Code of Judicial Conduct is titled, “A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities.” Regarding “outside influence,” the canon states: “A judge should not allow family, … financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others.”
In 2019, Justices Samuel Alito and Brett Kavanaugh met privately with the president of the anti-LGBT National Organization for Marriage. At the time, NOM was party to an amicus brief in Bostock v. Clayton County. There, a 5-4 Court ultimately held that Title VII of the Civil Rights Act prohibits employment discrimination against gay, lesbian and transgender people. Kavanaugh and Alito were among the dissenters.
We also remember Justice Ginsburg’s 2016 error, for which she apologized, by wading into political waters when she called candidate Donald Trump a “faker.” Canon 5 of the Judicial Code of Conduct is titled: “A Judge Should Refrain from Political Activity.” It provides that judges should not “publicly endorse or oppose a candidate for public office” or “engage in other political activity.” Had that canon applied to justices, it might have helped Justice Ginsburg avoid her admittedly “ill-advised” comments.
Canon 2 of the Code of Judicial Ethics, covering “outside influences,” would lead a justice to recuse from a case — or at least disclose — when a spouse receives compensation from a party filing an amicus brief, and therefore that the justice is indirectly on that party’s payroll. In the Jan. 31 issue of The New Yorker, prize-winning journalist Jane Mayer reported that Justice Clarence Thomas’s wife’s lobbying firm, Liberty Consulting, earned more than $200,000 from the Center for Security Policy, which appeared on a 2017 friend-of-the-Court Supreme Court brief in Trump v. International Refugee Assistance Project. There the Court reversed a stay on President Trump’s “travel ban” executive order, which suspended entry for 90 days into the United States by foreign residents from six designated Middle Eastern countries. Justice Thomas did not disqualify himself nor did he disclose any personal interest in the matter.
Under current practice, it is left entirely to a justice to decide whether to recuse himself or herself in a particular case. It is time to reconsider that practice and develop some alternative as a way of enforcing judicial ethics.
No person should be a judge of himself or herself. And the Supreme Court’s adopting even an advisory code would be an important first step at a time of diminishing public belief in the justices’ impartiality.
The confirmation hearing on President Biden’s nominee can serve to advance the cause. Senators should get an answer to the question of whether she would support an ethics code applicable to the Court. The fig leaf that Supreme Court nominees have used in recent years to avoid straightforward answers to Senators’ questions — “That issue might arise before the Court” — lends no cover here. This is not asking about how the person would vote in any specific case.
At a time when the Court’s approval ratings are the lowest in history, it is imperative that the Court act to strengthen public confidence.
Erwin Chemerinsky is the dean of the School of Law at the University of California, Berkeley.
Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.