The Supreme Court’s New Attempt to Combat Its Scandals Is Not Going Well

In 1901 a fictional Chicago bartender named Mr. Dooley, the alter ego of the humorist Finley Peter Dunne, observed, “The Supreme Court follows the election returns.” Ever since then, the justices have unconvincingly denied that they pay any attention at all to public opinion. As Justice Samuel Alito put it in Dobbs v. Jackson Women’s Health Organization, while stripping millions of people of abortion rights, “The Judicial Branch derives its legitimacy, not from following public opinion, but from deciding [matters] by its best lights.”

It is therefore remarkable that the Supreme Court has just announced its adoption of a code of conduct, despite years of insisting that its inherent integrity made written ethics rules unnecessary. And it is even more remarkable that the justices acknowledged that public opinion played a crucial role in their decision, even if they characterized it as a “misunderstanding” to be dispelled.

The now official Code of Conduct for Supreme Court Justices of the United States is a “good idea,” as Justice Amy Coney Barrett put it a couple of weeks ago, when she knew that it would soon be released but avoided tipping her hand. Critics have rightly pointed out that the code lacks any enforcement mechanism, meaning that ethical compliance will continue to be determined only by the justices themselves—a task at which several of them have been notably lax in the past.

On the other hand, I have argued since 2005 that one important role of a Supreme Court code would be to let “citizens know what they can expect” of the justices. Unfortunately, it turns out that the justices do not expect very much of themselves. To the extent that this code differs from the long-standing Code of Conduct for United States Judges, applicable to the lower federal courts since 1973, it is largely because it has been adapted, as the accompanying commentary euphemistically explains, to the “unique institutional setting of the Supreme Court.” In fact, many of the adaptations consist of carve-outs that relax or eliminate the standard obligations of every other judge in the U.S.

The SCOTUS code’s basic provisions on recusal include the familiar requirement that a “Justice must disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned.” Two novel provisos, however, combine to make the rule nearly toothless.

A subsection in the code states, “The rule of necessity may override the rule of disqualification.” That may seem reasonable enough, until we get to the commentary’s definition of necessity, which is capacious enough to obviate virtually any otherwise required recusal. The commentary explains at length that “the loss of even one Justice may undermine ‘the fruitful interchange of minds which is indispensable’ to the Court’s decision-making process.” In addition, “the absence of one Justice [potentially prevents] the Court from providing a uniform national rule of decision on an important issue.”

It therefore appears that a clearly conflicted justice may nonetheless be “indispensable” and may therefore participate in a case, so long as it involves a sufficiently “important issue.” Most ethicists would recognize that the highly important cases are precisely the ones in which an otherwise disqualified justice should not be able to cast the deciding vote.

But the commentary actually makes it worse than that, reaffirming the “historic practice” in which “individual Justices, rather than the Court, decide recusal issues.” Thus, a single justice, perhaps with a spouse or benefactor who is interested in the outcome of a case, may personally decide that he or she is so “indispensable” that the ordinary rules of recusal need not apply.

Read together, the code and commentary provide only that the justices will recuse themselves if they feel like it.

Other new provisions seem designed almost to retroactively authorize the past conduct of individual justices, such as Sonia Sotomayor’s assignment of her assistants to push sales of her books. Regarding the use of court resources, the code specifically authorizes justices to use their chambers and staff to support “activities permitted under these Canons,” which include managing closely held businesses and other “remunerative activity.” That is an outright reversal of the lower courts’ code, which flatly prohibits the substantial use of “chambers, resources, or staff” for profit-making activities.

The strangest provision applies to financial reporting. Departing from the usual phrasing of codes and statutes, which speak in terms of rules or obligations, it says, “For some time, all Justices have agreed to comply with the statute governing financial disclosure, and the undersigned Members of the Court each individually reaffirm that commitment.”

It does not take much reading between the lines to deduce that this odd language was necessary to obtain Alito’s vote for the code, following his petulant assertion in the Wall Street Journal that Congress has no “authority to regulate the Supreme Court” and insistence that his ride-alongs on private jets with billionaire pals were totally within the rules of that statute.

Given that the code had evidently been in the works for years—Justice Elena Kagan told a Senate committee in 2019 that it was already being studied—the eventual product is both welcome and frustrating. On the plus side, the Supreme Court finally acceded to public pressure and ended its 50-year run as the only court in the U.S. without written ethics rules. Regrettably, and perhaps predictably, the justices nonetheless passed up the opportunity to reform their deeply unsatisfactory recusal practices, and if anything made them worse.

Perhaps Chief Justice John Roberts was right in 2011, when he said, “No compilation of ethical rules can guarantee integrity.” We shall see.