The Supreme Court’s refusal to adopt a code of conduct is nothing but petulance

The Supreme Court is on fire. Public support for the court is at an all-time low. Public suspicion that the high court is governed less by law than by ideological impulse is at an all-time high.

This Tuesday, however, Chief Justice John Roberts donned his helmet and charged into the conflagration, armed with a bucket of gasoline.

At this perilous moment in its history, it is mission-critical that SOCTUS reassure a skeptical public that its ethics are above reproach — that its justices “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” to borrow a phrase from codes of judicial conduct that all courts except the Supreme Court have adopted.

In Roberts’s letter to the Senate Judiciary Committee, the chief justice forwarded a statement from the Supreme Court in which its justices “reaffirm and restate foundational ethics principles and practices to which they subscribe.” In other words, the court reaffirmed and restated its commitment to the status quo, to remain above the law that a code of conduct would supply.

Sadly, the litany of alleged ethical improprieties against members of the court render the status quo indefensible. 

In the late 1990s, Justice Ruth Bader Ginsburg presided over cases involving parties in which her husband held stock.

A few years later, Justice Antonin Scalia accepted an invitation from the vice president to join him on Airforce 2 for a weekend of duck-hunting, while the VP was a named party in a case pending before the court.

Justices Scalia and Clarence Thomas both served as featured speakers at Federalist Society fundraising events, which violated the Code of Conduct for U.S. judges.

In 2016, Justice Ginsburg harshly criticized then-presidential candidate Donald Trump, which likewise violated the code applicable to the lower federal courts.

Judge Brett Kavanaugh was the subject of numerous disciplinary complaints for his intemperate testimony during his Supreme Court confirmation proceedings — complaints that were dismissed for lack of jurisdiction upon his elevation to the Supreme Court.

The leak of the court’s opinion in the Dobbs case, which overturned Roe v. Wade, would have violated the code applicable to the lower federal courts if it had been leaked by or at the instigation of a justice (we still don’t know how the opinion weas leaked).

Justice Thomas’s failure to disqualify himself from a case in which he voted to stay an order directing President Trump to obey a subpoena for records that included correspondence from his spouse raised serious ethical questions, as have recent revelations that he accepted hundreds of thousands of dollars in unreported gifts from GOP megadonor Harlan Crow.

In yesterday’s statement, the court marginalized its need for a code, asserting that the “broadly worded principles that inform ethical conduct and practices […] are not themselves rules. They are far too general to be used in that manner.”

This statement is embarrassingly wrong.

The codes of conduct adopted by all 50 state supreme courts and the lower federal courts follow a template created by the American Bar Association’s Model Code of Judicial Conduct. By its own terms, the current model code is comprised of “rules” — rules that establish “standards for the ethical conduct of judges” that are “binding and enforceable.” To be sure, some rules are more generally phrased than others, but 50 years’ worth of precedent since the first code was adopted has clarified ambiguities considerably.

What codes of conduct do is afford judges within a jurisdiction the opportunity to get together and buy in to a set of ethical precepts that they revisit, revise and internalize on an ongoing basis. It creates a culture in which judges are ever mindful of their ethical responsibilities — a culture that recent evidence indicates is absent from our Supreme Court. Whether the justices should be subject to a disciplinary process for violating the code is a separate and controversial question. But whether they should adopt a code in the first place is a no-brainer.

The court’s steadfast refusal to join the rest of the American judiciary and adopt a code of conduct for itself is a matter of petulance, not principle, that reflects a stunning lack of concern for its own declining legitimacy.

Charles Gardner Geyh is Distinguished Professor and John F. Kimberling Professor of Law at Indiana University. He is the lead author of the treatise “Judicial Conduct and Ethics” and has served as co-reporter to the American Bar Association commission that revised the Model Code of Judicial Conduct.