But if the point is to subject the justices to practical oversight and supervision, an ethics code would probably fall short. The justices would likely end up supervising themselves. Justices are already required by law to recuse themselves where their “impartiality might reasonably be questioned,” as Justice Ketanji Brown Jackson did earlier this year in the Harvard University affirmative action case. As a practical matter, a code might encourage politicized harassment of the justices without truly subjecting them to any real source of external authority.
And if the objective is to help restore the court’s declining legitimacy, it will prove sadly inadequate: Only sound, careful interpretation of the Constitution can reverse the slide caused by the current court’s reactionary overreach.
I understand the symbolic appeal of an ethics code. The rest of the federal judiciary is subject to the Code of Conduct for US Judges, adopted by the Judicial Conference in 1973. (The Judicial Conference is composed of the Chief Justice, the chief judges of the various circuits, and some other judges.)
The code consists of five common sense “canons,” each accompanied by modestly detailed commentary. Its provisions are pretty much what you’d expect. Judges should uphold the integrity and independence of the judiciary; avoid impropriety and its appearance; perform their duties fairly and impartially; and refrain from political activity. Extrajudicial activities are allowed if “consistent with the obligations of the judicial office.”
The reason the Judicial Conference hasn’t applied the code to the justices is that the Supreme Court is a body specifically created by the Constitution. Under the Constitution, it’s up to Congress to create the lower federal courts, which they can also in principle eliminate. Congress also created the Judicial Conference. So according to formal constitutional logic, expressed as recently as 2011 by Chief Justice John Roberts, “because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.” In other words, the Judicial Conference, a creature of Congress, lacks the authority to regulate the Supreme Court, a body created by the Constitution.
It follows that the only code of conduct that could ever govern the Supreme Court is one it adopted itself. However, there is no substantive reason that the justices shouldn’t follow the same principles as lower courts. Indeed, according to the Supreme Court, the justices already take those principles into account in governing their own behavior. I can’t think of any modern example of one of the justices openly acknowledging that he or she has engaged in conduct that violates any of the canons.
What would not make sense, given the Supreme Court’s unique constitutional status, would be for a Supreme Court code of conduct to give formal authority to any external body to oversee the justices. Even if such a conferral of authority were constitutional, there would be a meaningful risk that such a body would use its supervisory authority to try to influence the outcome of Supreme Court cases. Certainly no supervisory body could remove a justice. That requires impeachment and conviction by the Senate.
Suppose, though, that a supervisory body were to advise or direct a justice to recuse himself or herself from a given case. In a world where we can often make a reasonable guess about how justices will vote, such directives might well determine the outcome of cases before the court. That seems like a terrible, indeed a dangerous idea. After all, the whole reason the court is “supreme” is that there is no judicial body above it.
In practice, then, the adoption of a code of conduct by the justices would function as an invitation for politicians, the press, interest groups, parties before the court and members of the public to raise ethics concerns by claiming that the justices were violating the code. The justices themselves would then have to decide whether such accusations were correct.
Yet it doesn’t seem like a very good idea for the justices to sit in judgment of one another, both for reasons of collegiality and because the justices might not always be able to disentangle their preferred outcomes from the principled disqualification of other colleagues from specific cases. If they avoided this danger by just never advising each other to recuse, that would leave us more or less where we are today.
The upshot is that a self-imposed code would probably make a substantial difference only in the arena of public discourse. Would it be a good thing to encourage more claims of unethical behavior or disqualification against the justices? Perhaps, if it would encourage the justices to be even more cautious than they already are about following ethics rules.
The alternative is also possible, however. If the ethics complaints against the justices follow a predictable partisan structure, as they almost certainly would, the effect might well be for the justices not to take them seriously. Ditto for the public, which is smart enough to see that ethics charges against the justices tend to follow partisan lines already.
In my view, the court is currently facing a crisis of legitimacy, one mentioned by several of the justices in public remarks. The cause of that crisis, however, has nothing to do with the justices’ personal ethics. It has to do with the radical, reactionary nature of its recent decisions on topics like abortion rights and guns.
I hope the court goes about restoring its own legitimacy. The way to do that is by fulfilling the court’s core functions of protecting individual rights, the rule of law, and the basic institutions of democracy. No code of ethics will make that happen.
More From Noah Feldman at Bloomberg Opinion:
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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”
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