by PEG Contributor, Leslie Kamil, OTR/L, MS, JD
The U.S. Supreme Court recently issued a code of ethics following months of financial scandals associated with Justices Samuel Alito and Clarence Thomas. The nonbinding code, signed by all nine justices, outlines five canons intended to guide their behavior, emphasizing integrity, impartiality, diligence, and the avoidance of impropriety and political activity.
The code itself is unremarkable. It is based on the American Bar Association’s Model Code of Judicial Conduct, which is used throughout the country. In structure and in content it is largely the same. It, however, is absent of specifics and teeth.
Many critics have highlighted a critical flaw: compliance with the code is essentially voluntary and lacks any enforcement mechanisms. It is argued that the Court’s self-regulation isn’t sufficient, given the potential impact of their decisions.
Amanda Frost, a law professor at the University of Virginia who testified before the Senate Judiciary Committee on Supreme Court ethics, among others, has pointed out the disparity in accountability between Supreme Court justices and lower court judges who operate under stringent rules. Frost discusses possible solutions to this issue.
A recurring issue is the determination of recusal, left solely to individual justices. Critics argue that this practice lacks transparency and consistency, highlighting the necessity for an impartial body to oversee such decisions.
Suggestions abound, including proposals by Jeremy Fogel, the executive director of the Berkeley Judicial Institute and former California state judge and U.S. District Court judge in San Francisco. He proposes a panel of retired federal judges to address recusal issues. The code does not provide a mechanism to see how each individual justice applies the standards on how you deal with individual recusals. Each judge could be using a different standard. Fogel and others stress that the justices need an impartial referee, someplace to go to ask for an impartial opinion. “There’s been too little attention [among the justices] to appearances,” and appearances matter. The underlying concern remains the absence of an effective mechanism to ensure compliance with these ethical guidelines.
The US Courts have several robust policies on financial disclosure, gifts to the judicial branch, and mandatory conflict screening. The Supreme Court Code lacks reference to these policies and any comprehensive and guiding language on these issues.
The consensus of critics is that this code is too little, too late. Rules don’t matter all that much without some faith that they’ll be applied and enforced in a fair, non-arbitrary way.
Washington Post – Opinion – Jeremy Fogel
Michigan Advance November 13, 2023
MSN Opinion by Erwin Chemerinsky
MSN Opinion by Stephen I. Vladeck