A Code of Conduct for the U.S. Supreme Court?

Dr. Alexandros Kyriakidis[1]

It was recently revealed that one of the nine Associate Justices of the  Supreme Court of the United States of America (SCOTUS), Justice Clarence Thomas, omitted including in his financial disclosure forms to SCOTUS not only luxury trips that he and his wife had accepted for free for more than 20 years from a businessman and major donor (more than $10 million) to the Republican party[2], but also the sale to the same businessman in 2014 of three properties owned by him, in one of which his mother still resides. It was also reported that he continues to collect rental income from a Nebraska real estate firm that has ceased operations since 2006. These raise important questions about his independence and potential conflict of interest in his role as a Justice. Similar questions had arisen last year, when it was revealed that his wife had sent mobile text messages in 2020 to the then Chief of Staff of the White House, encouraging him to question the legitimacy of the results of the Presidential election.

The above seem to have damaged the credibility of and confidence by people in SCOTUS. In fact, the Chair of the Senate Judiciary Committee invited Chief Justice John Roberts to appear before the Committee on the Court’s rules of conduct. Although not usual – the last hearing in which a SCOTUS Justice appeared before the Committee was 12 years ago – inviting SCOTUS Justices before Congress is permissible. However, the Chief Justice refused to appear, citing the importance of separation of powers and arguing that in only four prior instances did SCOTUS Chief Justices appear before Congress, all of which were concerned with administrative matters (he also points out that there have been only three cases in which the US President has testified before any Congressional committee), instead providing a written “Statement on Ethics Principles and Practices” signed by all nine SCOTUS Justices.

Current regime

SCOTUS does not have, nor is bound by a Code of Conduct. Judges of lower federal courts, however, are subject (with a few exceptions) to the provisions of the Code of Conduct for United States Judges, adopted in 1973[3] by the Judicial Conference[4]. It outlines the ethical obligations of judges and various circumstances that would qualify as influence or conflict of interest, the judges’ obligation to perform their duties faithfully and in good conscience, the cases in which  judges should exclude themselves from adjudicating a case, etc. The Code is not  a legally binding text and does not include penalties – judges are themselves responsible for adhering to it. However, possible violations may result in disciplinary actions (e.g. suspension) or exclusion from adjudication of a case, in accordance with broader relevant legal provisions.

The aforementioned Code does not apply to SCOTUS Justices. The U.S. Constitution (Article III, Section 1) directly provisions the establishment of only the Supreme Court without any sanctioning provisions, and also provides Congress with the option of establishing lower courts. The Judicial Conference was, therefore, created  by Congress only for those lower courts that it created. The only constitutionally-provisioned possibility for Congress to exercise control over SCOTUS Justices exists through Article II, Section 4 of the Constitution, which concerns the impeachment (removal from office) by Congress of “The President, Vice President and all Civil Officers of the United States” (SCOTUS Justices are included in the last category) “for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” 

Aside from the above, according to the Chief Justice, SCOTUS Justices themselves “consult” the aforementioned Code of Conduct for United States Judges, as well as multiple other sources (academic literature, SCOTUS’ Legal Office, etc.) in the process of assessing their ethical obligations. In addition, the Justices have voluntarily chosen to be bound by individual provisions legislated by Congress that concern specific issues, such as recusal, submission of financial disclosure forms, restrictions on gifts and any additional income, etc., while refraining from making an assessment of the constitutionality of these provisions despite their ability to do so (potentially finding them unconstitutional and, hence, not implementing them).

Even this voluntary application of these rules has to be, of course,  subject to certain modifications, given the specific nature of SCOTUS. For example, Justices cannot review a decision by one of them to be recused (or not) from a case, as this would potentially lead to undue influence on that very case through selective assignment of the Justices involved in the case. Also, considering the very limited number of the Justices, there is very little room for replacing one in a case. 

Code of Conduct for the Supreme Court?

Is the current regime sufficient, even with the above adjustments? Probably not. The ability of Congress to impeach SCOTUS Justices is severely limited in terms of the offences, has a specific scope, and concerns acts that are of grave misconduct without any progressive escalation of sanctions. It is not possible to apply this provision to other, less serious, actions that would require different types of penalties. As far as the voluntary application of the existing Code of Conduct for United States Judges, and other relevant provisions and rules, by the SCOTUS Justices is concerned, this is a step in the right direction. However, the absence of a single text – even a non-binding one – detailing the relevant rules for the observance of which there is a commitment by the Justices – even a voluntary one – certainly hinders transparency and the consistent and uniform application of rules. Moreover, the Justices retain the right to revoke their voluntary commitment to the existing rules or even, in the case of rules legislated by Congress, to declare them unconstitutional. The May 2023 “Statement on Ethics Principles and Practices” by the nine Justices also does not change any of the above, merely enumerating the aforementioned rules followed.

On the part of the legislature, there have been attempts to adopt relevant legislation. In July 2021, a Bill was introduced in the Senate authorizing the Judicial Conference to issue, within one year, a code of conduct for all U.S. judges, including SCOTUS Justices. Similar initiatives have also been undertaken in the past (e.g., 2011, 2017, 2018, 2019), but none of them have ever become law. In October 2021, a Resolution by the House of Representatives was adopted that expresses the need for SCOTUS Justices to be subject to the above-mentioned, applicable to lower courts, Code of Conduct for United States Judges, without, however, being legally binding.

However, even if relevant provisions are eventually legislated, important issues arise. The constitutionality of these provisions would be subject to the judgment of the SCOTUS itself, which may declare them unconstitutional and therefore not apply them. The application of these provisions also raises challenges: e.g., in cases of recusal, in lower courts the decision is usually made by a higher court that is absent in the case of SCOTUS. As for the imposition of sanctions, in addition to impeachment (above), any other intervention by Congress would  probably challenge the aim of the Founding Fathers to safeguard the independence of the SCOTUS from the legislature. And any possible involvement by the Judicial Conference in any of the above issues would raise issues of hierarchy and constitutionality, since it would allow lower-court judges who are members in the Conference to influence important issues of SCOTUS Justices.

Despite the above, and always bearing in mind that, in principle, the ability of SCOTUS to determine its internal affairs without influence is considered crucial for political ‘insulation’ and the trust by citizens in SCOTUS as a non-political institution, the need to adopt a Code of Conduct (whether new or based on existing rules) – even if by the SCOTUS itself – has now, after the recent revelations, become increasingly necessary, on which (regardless of the specific details) there seems to be agreement in the wider academic literature as well.