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Outside groups take a first stab at a Supreme Court ethics code

Jemal Countess
Getty Images for People's Rally

Finally, somebody has taken a try at writing a Supreme Court ethics code, though not the court itself. The justices reportedly have discussed the subject but apparently have not reached any agreement on what, if anything, to do about it.

Now, however, two groups have written what they call a model code of conduct for the Supreme Court. And it's getting generally favorable reviews. The groups are the Project on Government Oversight, a nonpartisan, independent government watchdog, and the Lawyers Defending American Democracy.

Their effort follows an increasing drumbeat of criticism aimed at the court for perceived ethical lapses and failures to deal with them. Most recently the American Bar Association passed a resolution calling on the justices to adopt a binding code of ethics and urged other bar associations around the country to pass similar resolutions.

The proposed model code of conduct and accompanying commentary couches its objective in modest terms — to offer a proposal for further discussion and for the court to consider. While its recommendations are based on the already existing code of conduct that applies to lower federal court judges, the proposed Supreme Court code goes much further.

The recommendations

It recommends "clear and more stringent guidelines for recusal, prohibitions against conduct that creates an appearance of partiality, rigorous obligations for disclosure, and standards for transparent decision-making."

In particular, for instance, the model code would require justices to disqualify themselves from cases involving not only financial entanglements of family members, but lobbying activities of would-be litigants involved in a justice's confirmation. And it would bar close family members from engaging in political or other activity that presents the appearance of partisanship.

The proposed code would go further than the existing code for lower court judges, which bars participation in political activities. The proposal would also bar Supreme Court justices from appearing before groups with partisan or ideological agendas, groups like the conservative Federalist Society or the liberal American Constitution Society. And it would recognize that certain political activities by a spouse or other close family members would require justices to recuse themselves.

Such a provision would clearly have forbidden Justice Clarence Thomas from participating in a 2022 case involving the release of Trump White House records to the House committee investigating the Jan. 6 attack on the U.S. Capitol. Thomas was the lone dissenter when the court refused President Trump's effort to shield those records from disclosure, records that later showed Thomas's wife, Ginni, had communications with top Trump White House officials, urging them to take steps to block certification of the election results.

'A starting point for a discussion'

"It's sort of beyond debate now that the justices do need a code of conduct," says Sarah Turberville, director of the Constitution Project at POGO. "This is a starting point for a discussion about what that code should look like."

The authors of the code acknowledge that "these additional rules would undoubtedly place additional burdens on the justices. They would prohibit some activities in which justices have freely engaged and subject them to additional scrutiny." But, the authors contend, "this is an appropriate requirement for a lifetime position imbued with enormous power."

"We believe a code has intrinsic value because it clarifies the bounds of acceptable conduct," the authors say in their introduction. "Moreover, in cases of clearly egregious conduct...it could support Congress' impeachment power."

NYU law professor Stephen Gillers, author of perhaps the leading text on judicial ethics, says 85% of the recommendations in the proposed model code are already the rules for lower court judges, and the Supreme Court has said it consults those rules as guidelines for itself. But the proposed model code, he notes, calls for more disclosures of gifts and income sources for justices and their spouses. That, he says, would be a big step forward. So too would be a requirement that justices explain why they recuse themselves from participating in a case. Other recommendations in the proposed code, says Gillers, are non-starters, like requiring that justices to put their assets in a blind trust.

The court isn't bound by a code of ethics

Gillers says he believes that the only reason the court has not actually been able to come up with a code of conduct for itself is that the justices "don't want to be pushed around. They don't want the clamor." Gillers' "read" is that the justices think it will "look weak. It will look like they are giving up their independence." But, he observes, "Every judge in America is governed by ethics rules. Except nine. And guess who they are?"

University of Virginia law professor Amanda Frost says the pressure on the court is bound increase. While she thinks that Congress could write an ethics code for the court, it would be far better for the justices to do it themselves. In fact, Sen. Sheldon Whitehouse, D-R.I., has proposed requiring the court to write its own ethics code, and to set a deadline.

It is unlikely that the court will do that until it reaches some sort of consensus among the nine. As professor Gillers observes, supposing three justices refuse to sign on to a new code, it would be worthless because there would be no internal pressure to comply. And peer pressure is really the only enforcement mechanism that might work.

Copyright 2023 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.