The Supreme Court of the United States has issued an official and long-awaited decision Code of Conduct for Judges Monday, just weeks after Justice Amy Coney Barrett publicly stated that all nine justices thought a code of ethics was “a good idea.”
Although the 14-page code details a range of ethical expectations, it conspicuously excludes any mention of enforcement mechanisms or penalties for violations. The legal community appears to be divided on the meaning of the omission; While some accuse the justices of fussing over a woefully ineffective set of ethical standards, others say a more forceful enforcement mechanism would be constitutionally impossible.
As the justices noted in their opening opinion, many of the code’s requirements are “not new” and reflect ethics rules from other sources, including those that apply to other members of the federal judiciary.
They further explained that their decision to issue a formal code of conduct was an attempt to correct a recent “misunderstanding” that the judges were acting “unconstrained by any ethics rules.” They said the code was merely a representation of the standards they had already adhered to.
More specifically, the code requires that judges maintain the independence of the federal judiciary, avoid all forms of impropriety and outside influence, act without bias or fear of criticism, recuse themselves from cases with which they are personally connected, and refrain from engaging in activities , who “impair the “dignity” of official duties and do not engage in political activity.
All nine judges have signed the new code.
Reaction to the Court’s publication of the Code was, as could reasonably be predicted, swift and violent. The most common criticism expressed by many lawyerswas that the code was conspicuously lacking in any enforcement mechanisms.
University of Texas School by Professor Steve Vladeck observed that “nothing in the 14-page document or the one-page cover letter addresses the elephant in the room: *whatever* rules the judges *say* they must abide by, *who* will enforce those rules – and how?”
Similarly, Fix the Court’s Gabe Roth released a statement criticizing the justices for “clear and years-long failures.”[ing] to live up to their ethical responsibilities” and to describe the code as a code that “leaves”.[s] “Leaves a lot to be desired.”
“If the Nine want to issue a code of ethics with no enforcement mechanism and remain the Nine’s sole police force, how can the public trust them to do anything more than cover for each other, ethics be damned?” Roth asked, also specifically pointed out that the Code’s use of the word “knowingly” appeared to be an excuse for Justice Clarence Thomas’s treatment of Harlan Crow.
So does Anthony Michael Kreis, professor of Georgia constitutional law at the Georgia State University College of Law said“A code of conduct without meaningful enforcement mechanisms is a mere gesture.”
Anthony Coley, former head of the U.S. Justice Department’s public affairs division under Barack Obama, criticized the code for having “no teeth.”
“There is silence on the most important question: If a judge violates it, what then?” asked Coley.
However, constitutional expert and former Antonin Scalia staffer Ed Whelan argued that the lack of a specific enforcement mechanism is “a necessary imperfection in the system” and that proposals to correct this imperfection “would likely create more problems than they solve.” Whelan’s comments come in part from a Official report 2021 made by Brookings Institution Research Fellow and former Deputy Director of the Federal Judicial Center Russell R. Wheeler to the Presidential Commission on the Supreme Court of the United States.
Wheeler’s report specifically addressed the question of whether Congress should create a mechanism by which other justices would investigate and sanction misconduct by Supreme Court justices. Wheeler concluded that the answer was a resounding “no.” Wheeler detailed the path to his conclusion: If Congress created a disciplinary mechanism, most – or perhaps even the only— Possible people for the appointment would be subordinate judges or retired judges. That would be a problem, Wheeler said, because lower court judges “simply have no legitimate role in the administration of the Supreme Court,” particularly given the fact that the lower courts were created by Congress, while SCOTUS was created directly by the Constitution .
Furthermore, Wheeler said, a formal enforcement agency could “weaponize a process for complaining about judicial conduct for judges, involving not only the judges but also those who appoint the panel.” In such a system, Wheeler said, complaints could become the preferred response to misconduct simply because impeachment is more cumbersome. In addition, a small bureaucracy would have to be created to deal with the likely flood of complaints, even if they are “almost all frivolous” given comparable data.
Vladeck and Whelan went back and forth online several times, with Vladeck pointing out a suggestion behaved in October. Vladeck supported the appointment of an Article III Inspector General to monitor compliance with ethics rules and discipline employees who are not Article III judges, recommend disciplinary action against lower court judges, and directly report misconduct by Supreme Court justices to the congress.
Whelan, in turn, pointed out that Vladeck’s proposed solution was an action congress and not the court itself, to which Vladeck replied: “Sure, but if the justices were really committed to enforcing these new rules, they could certainly work with Congress – or at least acknowledge the possibility of such a mechanism.”
In recent months, calls for ethics reviews of Supreme Court justices have reached something of a peak. At the end of October, the Senate Judiciary Committee Posted on Xformerly known as Twitter, that a “[n]A new report finds that Judge Clarence Thomas failed to disclose a loan forgiveness of more than $250,000 on an RV loaned to him by a wealthy health care benefactor.”
Last July, the Senate Judiciary Committee approved a measure that would subject Supreme Court justices to stricter standards, increased public scrutiny and a special committee to investigate allegations of misconduct. Although Senate Judiciary Chairman Dick Durbin, D-Ill., celebrated While they called the bill “a critical first step toward restoring confidence in the court,” Senate Republicans declared the measure “dead as fried chicken.”
Of course, Supreme Court justices—like other members of the federal judiciary—can be removed through the impeachment process for misconduct. In fact, as allegations against Thomas mounted, some have suggested his impeachment. However, despite the theoretical possibility of impeachment, only one judge has been impeached so far. Associate Justice and distinguished Federalist Samuel Chase was impeached in 1804 after the House of Representatives passed articles of impeachment against him for allowing partisan loyalties to influence his judicial decisions. However, Chase was acquitted by the Senate the following year and remained in office.
You can read the full Code of Conduct for Judges Here.
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