Supreme Court Ethics

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By William Yeomans, a Fellow in Law and Government at American University Washington College of Law.

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Last week, 107 law professors from 76 law schools joined in a letter to the Chairs and Ranking Members of the Senate and House Judiciary Committees calling on Congress to take up two issues central to the integrity of the Supreme Court: the lack of a mandatory code of ethics governing the justices and the lack of a transparent and enforceable process governing recusal. The letter urged its recipients to convene hearings in the Senate and House Judiciary Committees and to advance appropriate legislation. The letter noted that recent media reports have heightened the visibility of these issues, but emphasized that the letter is a nonpartisan call for reform.

The letter starts from the foundation that Supreme Court justices, unlike all other federal judges, are not subject to a mandatory and enforceable code of judicial conduct. Yet, Canon 1 of the Code of Conduct for United States Judges states that "[a]n independent and honorable judiciary is indispensable to justice in our society" and adherence to high standards of conduct is essential in maintaining such a judiciary. This admonition applies with added force to justices, whose decisions have the greatest impact. While justices may look to the Code of Conduct for guidance, they are not bound by its provisions. The letter, therefore, urges Congress to apply the Code of Conduct for U.S. Judges to Supreme Court justices and to establish procedures for enforcing the Code.

Similarly, justices are permitted to determine whether to recuse themselves from matters before the Court without review by an independent entity and without explaining their decisions. The letter recalls the fundamental principle identified by Lord Coke in the Seventeenth Century that "no man may be a judge in his own case." Yet, that is exactly what we tolerate when a Supreme Court justice is faced with a recusal issue. Because there is no requirement that justices explain their reasoning in recusal decisions, the bar and the public often are left in the dark. We understand the importance of judicial opinions to the development, legitimacy, and integrity of the law in other matters. Providing transparency regarding recusal decisions is at least as important, since they cut to the core of the Court's integrity. The letter, therefore, urges Congress to require written opinions when justices decline to recuse themselves and to establish a procedure -- or require the Court to establish one -- that provides for independent review of recusal decisions.

Recognizing that there are difficult choices to be made, the letter stops short of endorsing specific solutions to two important issues. The first is how to structure a mechanism for enforcement of the Code of Conduct regarding justices. While the Judicial Conference oversees this process for other federal judges, it may be necessary to involve justices in the new process or to consider creation of a new body.

The second difficult issue is how to establish a process for review of recusal decisions. Ideally, as the letter intimates, the Court, if encouraged to do so by Congress, would take on this assignment. If it did not, Congress might impose a solution. Most obviously, Congress could require review by the full Court. Given the separation of powers considerations inherent in congressionally mandated solutions in each of these areas, it will be important for Congress to examine the possibilities in hearings.

Some have responded to the letter as a partisan or ideological assault on conservative members of the Court. Others have opined that the recent media focus on Justice Thomas makes this an inappropriate time to consider reform. Both criticisms miss their mark. Reports of the political activity of Justice Thomas's wife in matters that may come before the Court, Justice Thomas's failure to report nearly $700,000 of her income from the Heritage Foundation, and his attendance at a closed door, partisan meeting sponsored by the Koch brothers surely raise concerns, as do Justice Scalia's appearance at a Koch brothers partisan gathering and Justice Alito's reported appearances at fundraisers for the American Spectator. These justices, however, are simply the latest to attract concern. Numerous justices as far back as Chief Justice John Marshall and including justices appointed by Democratic and Republican presidents have sparked public attention because of their extra-judicial activities or their recusal decisions. Regardless of whether any of the activities of sitting Justices prove unethical, they drive home the need for an enforceable code of conduct that will assure the American people that the Court is applying the law in a manner that is free of favoritism and partisan influence. The recent publicity highlights the dangers posed by unaccountable justices and provides an opportunity for Congress to focus on the longstanding need for reform. Congress should respond to the call for action with speedy hearings and legislation.