Will the Supreme Court’s new code make it more or less ethical? 

On Nov. 13, the Supreme Court acceded to public pressure and finally issued a code of conduct, a step that the lower federal courts had taken in 1973. It was not without a bit of needless rancor. 

In an introductory “Statement of the Court,” the justices grudgingly allowed that the new Code of Conduct for Justices of the Supreme Court of the United States was promulgated only to correct what they called the public’s “misunderstanding” of the ethics principles “we have long regarded as governing our conduct.”

Despite the justices’ insistence that the code only restates their existing “common law” ethics rules, there are, in fact, provisions that revise or contradict several of the court’s previous statements and practices, for better or worse.

Earlier this year, Chief Justice John Roberts flatly declined to testify at a Senate Judiciary Committee hearing regarding the proposed Supreme Court Ethics, Recusal, and Transparency Act of 2023, invoking “separation of powers concerns and the importance of preserving judicial independence.” 

Canon 4A(2) of the new code, however, appears to specifically endorse such testimony, with no exception for the chief justice, stating that a justice “may appear at a public hearing before an executive or legislative body … on matters concerning the law, the legal system, or the administration of justice.”

While congressional testimony is still at a justice’s discretion, the new provision clearly undermines Roberts’s claim that testimony on any proposed legislation — obviously concerning “the law, the legal system, and the administration of justice” — somehow infringes the separation of powers or judicial independence. It remains to be seen whether Roberts or the other justices will decide to make themselves more available to congressional committees, but the new code provision will certainly make rejected invitations much harder to justify.

If the provision on congressional testimony may broaden the court’s public responsiveness, another aspect of the code — in this case, the absence of a provision — seems to backtrack on an earlier commitment to greater transparency.

A “Statement on Ethics Principles and Practices,” issued by the court on April 25, and signed by all nine justices, addressed the criticism that they seldom provide reasons for their recusals. Although short of an unqualified commitment, the justices stated that in most circumstances “a Justice may provide a summary explanation of a recusal decision.”

Regrettably, it seems that the justices’ commitment to even that level of transparency was short-lived. There is no provision for recusal explanations in either the code itself or the five-page commentary appended to it.

According to Westlaw, as of Sunday, there were 48 recusals of justices since April 25. Only Justice Elena Kagan and Justice Ketanji Brown Jackson have given any basis for recusals. Although Justice Samuel Alito did publish a statement explaining his non-recusal in one case, neither he nor any of the other six justices chose to provide any reasons at all for their combined 37 recusals, which perhaps explains the inconsistency between April’s Statement on Ethics Principles and Practices and November’s Code of Conduct.

The biggest change, however, may be in the available grounds for recusal. Under Canon 3B, a justice is now disqualified if his or her spouse is known to have a financial interest or “any other interest that could be affected substantially by the outcome of the proceeding (italics added).” There is a similar provision in the federal recusal statute, but the justices have never conceded an obligation to follow it.

If strictly applied in the past, Justice Clarence Thomas would have been disqualified in Bush v. Gore, the case that decided the 2000 presidential election in favor of George Bush. While the case was pending and the election was still in doubt, the justice’s wife, Virginia Thomas, worked at the Heritage Foundation, actively collecting resumes for the Bush transition team, which surely constituted an “other interest” that could be affected by the outcome of the proceeding. Without Thomas’s vote, the resulting 4-4 decision would have affirmed the Florida Supreme Court’s decision in favor of a statewide recount, perhaps swinging the election to Al Gore.

The same is true of more recent litigation. Thomas has twice cast the sole dissenting vote in Supreme Court cases growing out of the 2020 election, despite his wife’s exchange of text messages calling on then-White House chief of staff Mark Meadows to pursue former President Trump’s many failed lawsuits, and her presence at the so-called Stop the Steal rally that preceded the Capitol insurrection.

Thomas did recuse himself from a case involving the attempt by John Eastman, his former clerk, to quash a subpoena from the now-defunct Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol. As in every one of his recusals, Thomas provided no explanation.

It is yet unknown whether the new code will affect the justices’ actual disqualification practices. Unfortunately, the code includes multiple new provisions that combine to make recusal essentially optional, even in situations where it would otherwise appear to be required. 

Canon 3B(3) includes a “rule of necessity,” which overrides the “rule of disqualification.” The commentary, for the first time, defines “necessity” to include “importance,” while affirming the past practice of deferring recusal decisions exclusively to “individual justices, rather than the court.” Thus, any justice is now free to decide that his or her participation — likely as the deciding vote — is more important than a conflicting interest.

Despite the Supreme Court’s protestations that nothing has changed, the new Code of Conduct for Justices of the Supreme Court diverges from past practices in ways both potentially troubling and possibly beneficial. Its overall impact will ultimately be determined by the inclinations of the justices themselves. 

As Roberts once aptly put it, “no compilation of ethical rules can guarantee integrity.”

Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law.