The Supreme Court’s Code of Conduct: enforcement confusion, extrajudicial activism

In mid-November, the Supreme Court released its first ever Code of Conduct, this after years of calls for the “Court [to] adopt the rigorous [sic] code of conduct that applies to all other parts of the federal judiciary” and complaints that “every federal judge is bound by a code of ethics . . . except for the nine” Justices.

Critics have called the code “a step in the right direction” but have been unsparing about what one observer called “its complete lack of any enforcement power.” This post puts the enforcement matter into context and points out some telling differences between the Justices’ Code and the code of conduct directed at other federal judges (here called the Judges’ Code). (For one example, a standard sentence in the Judges’ Code and many state codes tells judges to accept some burdensome restrictions on their behavior; the Justices’ Code omits that pervasive admonition.)

Enforcement

Criticizing the Justices’ Code for a lack of an enforcement mechanism is a bad rap. Judicial conduct codes rarely contain them. Most have a few precise commands but stress, as does the Judges’ Code, that “[m]any restrictions are necessarily cast in general terms, and judges may reasonably differ in their interpretation.” That hardly describes a binding set of enforceable rules. (State codes are similar. Maryland’s code provides, not “an exhaustive guide for the conduct of judges [but rather] guidance and assist[s] judges in maintaining the highest standards of judicial and personal conduct.”)

The U.S. Justices’ Code recognizes its lack of enforceability. Its explanatory Commentary says, echoing the Judges’ Code, that its “Canons are broadly worded general principles rather than specific rules requiring no exercise of judgment or discretion”—in other words, the Justices’ Code consists largely of broad standards with leeway for interpretation, making them difficult to enforce.

That said, there is no procedure—under any standard other than impeachment—for filing a complaint of Supreme Court justice misconduct. Congress exempted the justices from the 1980 statute that allows anyone to file a complaint that a federal judge—but not a justice—has committed “conduct prejudicial to the effective and expeditious administration of the business of the courts.” (Complaints are filed with the chief judge of the respective circuit; committees and councils of circuit and district judges act on those few that survive initial screening. Action can include sanctions.) Note that the statute does not define misconduct as a violation of the code of conduct. Rather the code comes into play tangentially: The Judicial Conference’s rules implementing the statute state that “the Code’s Canons are instructive,” but “ultimately the responsibility for determining what constitutes cognizable misconduct is determined by the Act and these Rules, as interpreted” by those charged with administering the statute.

Every state has a judicial conduct commission to receive complaints of judicial misconduct, but their jurisdiction includes the states’ supreme court justices, and their members include judges at all levels as well as legislators and lay citizens. Most states also specify that some code violations are in themselves sanctionable. Again, Maryland is typical. It defines “sanctionable conduct” as “misconduct while in office, the persistent failure by a judge to perform the duties of the judge’s office, or conduct prejudicial to the proper administration of justice,” adding that “violation of any of the provisions of the Maryland Code of Judicial Conduct may constitute sanctionable conduct” (emphasis added). The code itself distinguishes its enforceable provisions from provisions subject to the judge’s discretion.

The Justices’ Code makes a very modest bow to compliance: “To assist the Justices in complying with these Canons, the Chief Justice has directed Court officers to undertake an examination of best practices, drawing in part on the experience of other federal and state courts.” But the examples it provides would be at best minor changes: exploring “software to run automated recusal checks on new case filings” and considering whether Court support offices need additional resources to review “recusal and other ethics issues.”

The Justices’ Code is understandably preoccupied with recusal, a controversial topic in recent years, in part because each justice decides individually whether a conflict of interest requires his or her recusal in a particular case. As does the Judges’ Code Canon 3C, the Justices’ Code Canon 3B largely tracks the disqualification statute, which is the law governing recusal, but the Justices’ Code suggests a less stringent application of the statute than does the Judges’ Code—and adds provisions asserting a “duty to sit” (a contested assertion). It devotes almost 40% of the over 2,000-word Commentary to defending Canon 3B and explaining the deleterious consequences of recusal-caused four-four tie votes.

The states have considered ambitious proposals for regulating recusal. Texas appellate rules, for example, direct a justice or appellate judge subject to a recusal motion either to grant it or certify it to the full court to decide (without the subject judge). But the U.S. justices have already dismissed the operation of that practice as unworthy of the “examination” the Code seems to promise. The justices said last April that “[I]f the full Court or any subset of the Court were to review the recusal decisions of individual Justices, it would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its members may participate.” But if it is unacceptable for a bloc of justices to skew the composition of the Court from what it would be by a proper application of conflict-of-interest principles, how is it more acceptable for a single justice to do so, making his or her recusal decision alone? And, in any event, how has the rule played out in Texas and states with similar rules?

The justices will resist even more ambitious proposals (and no Congress in the present era would enact them): such as a Court inspector general or a mechanism paralleling the 1980 Judicial Conduct Act. One bill introduced early this year would have five randomly selected chief circuit judges review misconduct complaints and make recommendations to the Court for “necessary and appropriate action” including “disciplinary actions.” Justice Alito, though, has already dismissed that approach, advising a House Appropriations subcommittee in 2019 “that it is inconsistent with the constitutional structure for lower court judges to be reviewing things done by Supreme Court Justices for compliance with ethical rules.” Perhaps the U.S. Constitution—or the Supreme Court’s administrative autonomy within the federal judicial system—demands that conclusion, but I am unaware of any definitive examination. And for what it’s worth, all state judicial agencies that receive judicial misconduct complaints—including about their states’ supreme court justices—have lower court judges and non-judges among their members.

On the other hand, just because the Justices’ Code speaks in generalities doesn’t mean it lacks any standards. One source complained, for example, that nothing in the code “would make it unethical for, say, a justice [obviously referring to Justice Thomas] to accept a private luxury vacation from a friend, or for a justice to get a free RV from a friend.” In fact, on that topic, the Justices’ Code does what the Judges’ Code does: It says, “obey the law,” which does not bar gift acceptance per se but creates limitations and reporting requirements. Canon 4D (3) says “A Justice should comply with the restrictions on acceptance of gifts and the prohibition on solicitation of gifts set forth in the Judicial Conference Regulations on Gifts now in effect,” an implicit reference to the Court’s 1991 resolution, recently reaffirmed, to abide by the Conference’s gifts and financial disclosure regulations in the interests of “sound administration.” Even the tough March 2023 model code of Supreme Court conduct issued by the watchdog Project on Government Oversight does no more.

Some noteworthy provisions

Judges, scholars, journalists, and legislators will be crawling all over the Justices’ Code, analyzing it as they do Supreme Court judicial opinions. The Code’s wording, like those opinions, was no doubt crafted purposively, and omissions from the Judges’ Code were not casually made.

The following sampling of differences may be mere nitpicks or they may say something about how the justices see their extrajudicial role.

• The Commentary on Canon 2 of the Judges’ Code (and commentary in most state codes) tells judges “to expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.” The Justices’ Code commentary excludes this simple statement. It says “much” of the Judges’ Code commentary “is inapplicable.” Much of it may be, but what is inapplicable about this admonition to accept restrictions on conduct in return for the prestige and power of judicial office?
• Canon 4’s Commentary explains “that Justices, like all judges, are encouraged to engage in extrajudicial activities as long as independence and impartiality are not compromised.” The Judges’ Code Commentary adds that “a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice.” The Justices’ Commentary adds instead that “Justices—omitting “like all judges”—are uniquely qualified to engage in judicial activities that concern the law, the legal system, and the administration of justice, such as by speaking, writing, teaching, or participating in scholarly research projects.” The Court’s rarified atmosphere may be unique, but does it give justices more—or less—insight into the legal system than, say, trial judges in the trenches?
• Canon 3A of the Judges’ Code tells judges to “take appropriate action upon receipt of reliable information indicating the likelihood that a judge’s conduct contravened this Code” or that court employees or lawyers misbehaved. The Justices’ Code eschews any reporting on colleagues or other judges, saying only that a “Justice should take appropriate action upon receipt of reliable information indicating the likelihood of misconduct by a Court employee.”
• Both codes’ Canon 4 encourage “extrajudicial activities that are consistent with the obligations of the judicial office.” The Justices’ Code adds mild cautions about appearances at events that could be seen as partisan or fundraising. Having stated the cautions, though, the Code encourages justices to speak to educational, bar-related, religious, and other groups. And it seems to encourage book-writing: while Justices should not speak at an event promoting a “commercial product,” they “may attend and speak at an event where the Justice’s books are available for purchase.”

Overall, the Justices’ Code closes one chapter—demands for some kind of code—and opens others. Scrutiny of justices’ recusals or lack thereof, of their off-the-bench speeches and related activity, and of their financial reporting, will continue, but that scrutiny will now ask as well whether the behavior in question complies with the Justices’ Code. Critics will also ask: Compliance with the Code notwithstanding, does the Code provides sufficiently stringent guidance?

And, even though criticism of the Justices’ Code for lack of enforcement has been misguided, the matter will not go away. Continued examination of the Code’s effectiveness will prompt continued calls for some authoritative mechanism to evaluate complaints of misconduct by the Justices.