Supreme Court Justices and the Code of Conduct

Judicature, July/August 2011 | Go to article overview

Supreme Court Justices and the Code of Conduct


By explicidy adopting the Code of Conduct for U.S. Judges they already implicitly follow, U.S. Supreme Court justices will demonstrate that they understand the connection between their conduct and public confidence and distance themselves from the contentions that they take their ethical responsibilities lightly.

For courts, public relations is not a frivolous issue because public confidence in the courts is a crucial component of American democracy. The last several months, however, have presented a public relations challenge for the United States Supreme Court. We're not talking about the criticism of their decisions: it is the job of the Court to tell the nation hard truths, and disagreement about those decisions is to be expected when citizens have free speech.

The Court's public confidence problem is the increasing criticism of some of the justices' off-the-bench conduct, expressed not only by the left and the right, but by editorials in mainstream media, and arguments that conduct should disqualify them from pending cases. This criticism has culminated in legislation proposed in Congress - the Supreme Court Transparency and Disclosure Act of 2011 - that would, among other things, apply to Supreme Court justices the same code of conduct that applies to other federal judges and require the United States Judicial Conference to establish a process for other justices or federal judges to decide whether a justice should be disqualified.

So far, the Court has not made any formal, official effort to counter the impressions created by its critics. Continued inaction by the Court could invite congressional interference. There are, however, several simple steps the Court could take to wave off Congress and moot a possible separation of powers showdown.

First, by a vote of all nine justices, the Court could publicly adopt the Code of Conduct for U.S. Judges. In adopting the code, the Court could also indicate that the justices will be guided, as are other federal judges, by the advisory opinions of the Committee on Codes of Judicial Conduct.

That judicial officers are held to the highest ethical standards and that judicial independence is conditioned on judicial integrity are two of the principles American judges emphasize when they promote the rule of law in developing democracies across the world. It is anomalous, therefore, that the highest standards of ethics do not expressly apply to the members of the highest court in the U.S. The Court should voluntarily bring an end to that paradox, rather than face a congressional attempt to force them to do so.

Several of" the justices have been quoted as saying that the Court already follows the code so official adoption is not a radical step. By explicitly adopting the code they already implicitly follow, the justices will demonstrate that they understand the connection between their conduct and public confidence and distance themselves from the contentions that they take their ethical responsibilities lightly. Even without a mechanism for enforcement of the code, the justices will promote public confidence simply by publicly agreeing with the principles it announces, for example, that they "should not participate in extrajudicial activities that detract from the dignity of the judge's office, interfere with the performance of the judge's official duties, reflect adversely on the judge's impartiality, [or] lead to frequent disqualification."

Further, the rules are not burdensome. All other federal judges and tens of thousands of state courtjudgês across the country follow the rules with few problems, understanding that it is pan of their responsibility to the community they serve and proud to do it on behalf of the judicial system they are a part of. The ethical standards do not isolate thesejudges; in fact, although it discourages close identification with political groups and other narrow interests, the code encourages broader involvement in the community. …

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