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Perceived Partisanship Has Led to Calls for New SCOTUS Ethics Rules

By Joseph Fawbush, Esq. on February 05, 2022 2:26 AM

With Justice Breyer's recent retirement announcement, the country is once again focused on the Supreme Court nomination process. This nomination comes at a particularly interesting time for the Supreme Court, which is set to decide monumental cases in the coming months on a variety of hot-button issues such as abortion and gun rights. It also marks yet another of a line of many vacancies in the last several years, from Obama to Trump, all of which have resulted in contentious nominees and appointments. All this while the public's trust of the nation's highest court is at a low ebb and there has been more talk of reforming the Supreme Court than at any other time since the Roosevelt Administration.

Would a code of ethics for the Supreme Court help improve the public's perception of the court?

Lowered Public Trust

Available data suggests there might be reason to consider a focused effort at making SCOTUS a more bipartisan institution (which all federal courts are already supposed to be). A Pew Research Center survey from last month found that only 54% of respondents have a favorable view of the Supreme Court—a dramatic drop from just a few years ago. A similar Gallup poll in 2021 found that the slight majority of Americans today disapprove of the job the Supreme Court was doing, a reversal of the opinion from previous decades. And while the court still enjoys significantly more support than the other branches of government, the view of the Supreme Court as a moderate, apolitical institution is falling by the wayside. The Pew poll revealed that while 86% of Americans want the Supreme Court to be apolitical, only 16% thought the justices were doing an "excellent or good" job of keeping their personal political views away from decisions. In other words, the public's faith in the court seems on a downward trend, and a primary suspect is the justices' perceived neutrality (or lack thereof).

To keep its position of authority and status as a respected institution, the Supreme Court may need to look at ways to avoid appearing partisan. One suggestion for doing so is to create a code of conduct. Another is a better and more consistent set of rules for recusal.

Time to Create a Code of Conduct?

Unlike other federal judges, Supreme Court justices do not have any codified set ethical rules. There are a couple of reasons offered for this exception. One is that there aren't that many SCOTUS justices in the first place, and thus the media is more than capable of calling out justices individually for perceived ethical violations—and presumably holding them accountable. Another is that Congress is reluctant to set rules for a coequal branch of government, for fear of violating separation of powers concerns.

The Supreme Court can issue its own rules on ethical conduct, but so far, it has declined to do so. When first appointed to the bench, however, justices do take an oath. This oath is set out in federal law. New justices swear to:

“administer justice without respect to persons, and do equal right to the poor and to the rich, and . . . faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States."

What would a code of ethics entail? It might look very much like the code of conduct rules that govern other federal judges.

What About Recusals?

As you would expect, SCOTUS justices tend to come from successful careers as advocates for certain causes and ideologies. For example, Justice Ruth Bader Ginsberg was an attorney for the ACLU. Chief Justice John Roberts argued 39 cases before the Supreme Court and worked pro bono in gay rights advocacy prior to being nominated. While it is unsurprising that many justices have worked for or with organizations that may one day have a case before the Court, it does raise the issue of when conflicts of interest—or perceived conflicts—jeopardize the impartiality of the justice and make it difficult for the public to trust that they can be an neutral adjudicator.

Justices also have families and spouses who may be aligned with a certain organization or political belief. A much-talked about article in The New Yorker highlights the case of Virginia "Ginni" Thomas, wife of Justice Clarence Thomas. Ginni Thomas has advocated on behalf of a number of conservative causes during her time in Washington, including while her husband was on the bench. Chief Justice Roberts' spouse, Jane Sullivan Roberts, similarly took leadership roles in some conservative causes prior to the Chief Justice's nomination, although she retired from her law practice and leadership role on an anti-abortion advocacy group after her husband's nomination. This discrepancy is one reason why a more formal code may be necessary: both because justices do not always take the initiative of recusing themselves when they should and because their partners do not always take heed to tailor their own work around the justice's appointments. Further, it isn't always clear when justices must recuse themselves, and when a justice's own view of their impartiality trumps a perception of being biased for one party.

Justice Roberts himself addressed recusals briefly in his 2021 year-end report. He was responding to a Wall Street Journal expose that revealed that dozens of federal judges had illegal financial conflicts of interest in cases before the court. While Justice Roberts condemned their failure to recuse, he did also defend the federal judiciary overall, noting that financial conflicts of interest appeared in only a tiny percentage of cases. Further, he noted that these conflicts "likely entailed unintentional oversights in which the judge's conflict-checking procedures failed to reveal the financial conflict."

No Clear Intention for Code of Conduct

In 2019, Justice Elena Kagan testified before a House Appropriations subcommittee and reported that "the Chief Justice is studying the question of whether to have a code of judicial conduct that's applicable only to the United States Supreme Court." In December, 2021, Justice Sonia Sotomayor famously asked from the bench in oral arguments during the controversial abortion case Dobbs v. Jackson's Women's Health Organization if "this institution [will] survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?"

Read the Dobbs case and thousands more with a free trial of Westlaw Edge.

These comments indicate that at least a few of the current justices may be reconsidering the need for a more formal code of conduct for members of the Supreme Court. However, despite Justice Kagan's testimony, no public code of conduct has ever been issued.

For now, it is not clear if the Chief Justice is still considering creating a code of conduct. What is certain is that the newest nomination, whoever that turns out to be, will surely be subjected to extensive background checks in hopes to appease public skepticism of judicial impartiality.

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