An incremental approach to enacting a Supreme Court ethics code

The American Bar Association’s (ABA) resolution calling for Supreme Court justices to adopt a code of judicial conduct mimics other calls  for the adoption of ethics rules governing members of the high court. Like other proposals, the ABA suggests that the Court enact a complete and comprehensive code “comparable” to the code of conduct for all other federal judges.

Having a complete set of ethical rules governing a justice’s conduct written at the same time and housed in one document is certainly the best approach. But this approach simply has not gained traction with the Court. That is partly because sticky, contentious questions persist concerning which rules governing lower court judges are appropriate for members of the Supreme Court.

Should a Supreme Court code permit justices to receive awards and speak before law-related, charitable, civic and educational groups when the event has a fundraising component? The Code of Conduct for United States Judges prohibits judges from receiving awards or acting as speakers at fundraisers, although the prohibition is consistently violated by federal judges without consequence.

What restrictions, if any, should a code impose on book deals? The codes of conduct for other federal judges and state judges contain brief, vague, ambiguous and basically useless provisions on book contracts. But that is OK because nobody cares when these judges write books. Public interest surges, however, when a justice cuts a multi-million-dollar book deal. Enacting an all-encompassing code of conduct means resolving a myriad of complex issues. Getting all nine justices to agree on a complete code has proven difficult.

The justices might be more receptive to an incremental approach in enacting a code of ethics. Reviewing, amending if necessary, and then adopting one canon at a time might prove more palatable to the justices. This is especially true since one of the canons governing lower court federal judges is so universally accepted that it could be applied to the justices without modification.

Cannon 5 is concise and specific — no political activity by judges. Under Canon 5 a judge may not act as a leader or hold office in a political organization, speak for political organizations or candidates, publicly endorse or oppose candidates, contribute to a political organization or candidate or attend events sponsored by a political organization or candidate.

No one disputes the applicability of the anti-politics provisions of the Canon to Supreme Court justices. Indeed, the only proposed model code for the justices includes the substantive provisions of Canon 5 verbatim. Canon 5 is ready for adoption by the high court as is.

Canon 5 is non-controversial because its authors carefully delineate what the Canon prohibits. The commentary to the Canon defines “political organization” narrowly to include only political parties, groups affiliated with a party or candidate and entities whose principal purpose is to advocate for or against parties or candidates in public elections. It does not cover a judge’s activities with other groups promoting ideological, philosophical or partisan agendas.

So, a judge’s involvement with groups like the progressive American Constitution Society (ACS) or the conservative Federalist Society does not implicate the restrictions of Canon 5. Instead, the permissibility of speech making and other engagement with these groups is governed by the rules concerning a judge’s extrajudicial educational, charitable and law-related activities contained in Canon 4 of the code governing other members of the federal judiciary.

The point is not whether the justices should be prohibited from membership or other association with groups like the ACS and Federalist Society. That issue is for another day after some progress has been made in adopting a code for Supreme Court justices.

Rather, the point is that Canon 5 of the federal judges’ judicial code is ready for adoption by the Court without modification or controversy. The Canon’s restrictions are narrow, but its adoption would be of symbolic importance by signaling the Court’s interest in promoting ethical standards and public confidence in the judiciary. And the restrictions would come in handy on the rare occasions when Supreme Court justices violate the anti-political activity provisions of Canon 5. Justice Ruth Bader Ginsburg admitted such a violation after coming under universal criticism for announcing that Donald Trump was a “faker” and that she could not image the country under a President Trump. Chief Justice Earl Warren was only a bit more subtle staging a campaign photo op with California Governor Pat Brown meant as an endorsement of Brown over Republican gubernatorial candidate and long-time Warren enemy Richard Nixon.

It is time to take the first step in enacting a Supreme Court code of ethics. The non-controversial, anti-politics provisions of Canon 5 applicable to all other federal judges provides that opportunity.

Raymond J. McKoski is a retired Illinois judge serving as adjunct professor at the University of Illinois Chicago School of Law. His book, “Judges in Street Clothes: Acting Ethically Off-the-Bench,” examines ethical restrictions on the extrajudicial activities of judges.