ABA Passes Resolution Calling for Binding Ethics Code for SCOTUS

U.S. federal judges operate under a code of ethics. These rules offer guidelines justices are expected to follow to ensure their decisions avoid conflicts of interest — or even the appearance of them — so that the judiciary remains trusted as the least partisan of the federal branches of government.

The application of these ethical guidelines to the U.S. Supreme Court has been a large topic of conversation over the last several years. Now, the American Bar Association (ABA) has passed a resolution urging SCOTUS to adopt the same binding code of ethics that all other federal judges operate under. As the highest court in the nation, the ABA reasoned that SCOTUS should be held to the same high standards.

Everyone Answers to Someone, Except SCOTUS

In response to criticism over the acceptance of questionable gifts and refusal of recusal in cases where it seemed appropriate, Chief Justice John Roberts and SCOTUS adopted a code of ethics in 2023. However, this code was not binding or subject to enforcement.

Complaints of conflicts of interest involving federal judges are usually overseen by the chief judge of the circuit where the case is being heard. As the highest court in the land, there is currently no such system in place for SCOTUS. Each justice is responsible for deciding their own conflicts of interest.

In raising their concerns about ensuring the impartiality of the SCOTUS justices, the ABA listed several concerns to address:

• Gifts and Social Hospitality: There's been concern over previously undisclosed gifts and vacations provided to SCOTUS Justices. Justice Clarence Thomas in particular found himself under the microscope after the Senate Judiciary Committee found he had accepted over $4.2 million in gifts from billionaires during his time as a Justice. The ABA suggests that gifts be limited to a max of $1,000 per year per gift-giver. It also states that the current standard followed by other judges is that any gift over $480 in value must be reported as well. Justices shouldn't accept any gifts from the American Constitutional Society, the Federalist Society, or any other organization with a clear political ideology.
• Recusals: Judges are expected to recuse themselves from any case that draws their impartiality into question, such as amicus briefs that cause conflicts. This was an issue with Justice Thomas' refusal to recuse himself from cases involving the events of January 6 after it was revealed his wife, Virginia (Ginni) Thomas, sent texts to then White House Chief of Staff Mark Meadows about her concerns over election fraud before the storming of the Capitol.
• Creating a Judicial Review Panel: This panel would consist of five federal judges tasked to receive and screen complaints from the above categories. They would work with the Office of the Inspector General to conduct investigations and deal with ethical violations. This would include possible disciplinary measures.
• Creating an Office of the Inspector General for the Supreme Court (OIGSC): This office would act as a general overseer of SCOTUS and work with the Judicial Review Panel. Under the ABA proposal, the Chief Justice would have the authority to hire and fire members of the OIGSC.

During the Biden administration, Democrats in the Senate attempted to pass the Supreme Court Ethics, Recusal, and Transparency Act (SCERT). It failed in a unanimous consent vote. Given the current administration, it's extremely unlikely it will be revived for another vote anytime soon.

Unlikely to Revisit

Confidence in SCOTUS has fallen to record lows. 51% of Americans disapprove of the job SCOTUS is doing. This drops to 37% for adults under the age of 30. Only 18% of adults polled felt like SCOTUS was doing a good job of separating their political beliefs from their decisions.

Most of the justices currently on the Court served as federal judges before being appointed to SCOTUS, so the binding code of ethics is nothing new. Nor do the ABA's proposals differ much from the guidelines Justice Roberts introduced in 2023. Essentially, the ABA is calling for the same standards, only this time with some teeth.

However, these concerns were present both before and after Justice Roberts issued the guidelines, so the chances of the Chief Justice revisiting the issue seem unlikely, regardless of the ABA's stance.

Related Resources

• When To Request Judicial Recusal? (FindLaw's Practice of Law)
• Article II: Presidential Immunity to Criminal and Civil Suits (FindLaw's U.S. Constitution Center)
• SCOTUS' New Ethics Code: Not Really New, Not Really a Code (FindLaw's Federal Courts)