by Noah Feldman
It’s great that the U.S. Supreme Court promulgated a code of conduct for the justices. It should help put an end to the narrative that the court has been tone deaf to criticism of its ethical lapses. That said, the code will change nothing substantive about the way the justices conduct themselves. The code provisions roughly match those of the code that binds lower federal court judges — and that in practice the justices have been following for years. And no independent entity will formally apply the code to the Supreme Court. The justices will continue to be judges of their own ethical propriety — a product of the constitutional system that makes the Supreme Court the highest organ of the judicial branch.
The justices did not equivocate when it came to explaining why they are announcing the code now. A statement preceding the code explained that “for the most part these rules and principles are not new.” The problem was “the absence of a code,” which the court said “has led in recent years to the misunderstanding that the justices of this court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.”
You can’t get much more polemical than that in an unsigned statement attributable to nine Supreme Court justices. The justices were saying that not having a code was leading to them being beaten up in the court of public opinion. And that beating, they were saying, was unfair, based on a “misunderstanding.”
In one sense, the justices are right. As anyone who follows the court closely knows, the justices have long treated a variety of sources as governing its ethics. Those included statutes, the general judicial code, advisory ethics opinions issued by the relevant committee of the conference of federal judges, and historic practice. It’s accurate to say that the current code “largely represents a codification of principles that we have long regarded as governing conduct.”
In a different sense, the justices’ insistence that the code was only needed “to dispel” misunderstanding downplays the background reasons for needing to adopt a code formally. In the wake of the court’s Dobbs opinion overturning Roe v. Wade, the legitimacy of the court’s decision making has come under intense attack, probably greater than during any era since the 1920s. In that environment, the accusation of illegitimacy has been fueled in part by a series of mini scandals of varying degrees of gravity, such as Justice Clarence Thomas’s relationship with Texas billionaire Harlan Crow, who bought Thomas’s mother’s house with the stated intent of historical preservation.
It’s fair to say that the drumbeat of ethics criticism aimed at the justices has therefore been part of a broader attack on the jurisprudence of the conservative majority. The court’s adoption of the code is therefore a defensive maneuver. The justices can’t — or rather won’t — roll back their revolutionary decisions. But they can make it clear that they follow ethics rules.
The biggest difference between the rules governing the justices and those governing other judges have to do with recusal, the decision not to participate in the consideration of a given case. Both the code and the brief commentary accompanying it make it clear that recusal of a justice sitting on a case can have a major impact on a court that has only nine members, all of whom sit on all cases. In the lower courts, if one judge recuses, another judge can step in. Not so on the Supreme Court. In closely contested cases, recusals can make the difference for who wins and loses.
In recognition of this difference, the court’s code repeats what it calls the “time-honored rule” that where it’s necessary for a justice to sit on a case, the justice may choose not to recuse even though recusal would ordinarily be warranted. That makes sense. But it is unlikely to satisfy some of the court’s harsher critics, who want the justices to be utterly beyond reproach.
What’s more, the need for all nine justices to sit on close cases explains functionally why it would be impossible for the justices to, for example, create a subcommittee that would decide on who should be recused when. That subcommittee would effectively become the whole Supreme Court for purposes of determining outcomes in close cases.
The upshot is that the justices must be the judges in their own cases when it comes to recusal. There’s something funny about that, given the old common law idea that the most fundamental principle of justice is that no man should be the judge in his own cause. The truth is, however, that whether to be recused is not a “cause” in the ordinary legal sense of the term. It’s a discretionary judgment about ethics, to be made by each justice for himself or herself.
That’s a good reminder that the justices, in the end, are human. They are neither angels nor robots. They may have agreed to an official code, but the buck of judicial judgment must stop somewhere. And it stops with the nine Supreme Court justices.
