Ethics and the Supreme Court: Judicial Integrity

The ethicality of the actions of some members of the United States Supreme Court has recently been called into question, and those questions have brought along with them discussions about appropriate ethical oversight of the Court. Citizens' groups and even a congressman are calling for congressional creation of a mandatory Supreme Court code of ethics; the Court has never had more ethics regulation than unenforceable guidelines. The appearance of impropriety on the Court as a result of a number of questionable acts suggests that a change is necessary.

Their reputation is the courts' most important asset. It is essential that the public have faith not only in the Court's intellectual ability but also in its fairness, impartiality, and incorruptibility. The Code of Conduct for United States Judges, to which all federal judges except Supreme Court justices must adhere, explains in the first words of its first canon that "[a]n independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved."[1] The commentary to the Code explains that judicial integrity is important as a practical matter, to enhance the likelihood of respect for and compliance with court decisions. The Court restated this tenet in a recent decision on judicial ethics and recusal, quoting an earlier decision:

Courts, in our system, elaborate principles of law in the course of resolving disputes. The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments.  The citizen's respect for judgments depends in turn upon the issuing court's absolute probity. Judicial integrity is, in consequence, a state interest of the highest order.[2]

The five-justice majority held that because propriety is functional as well as a worthy ideal, it is important that courts maintain it in form as well as in substance. (The dissenting justices, minus Chief Justice John Roberts, are the three justices around whom accusations of impropriety are currently swirling. The dissenters argued that the mere "probability of bias" was too inchoate to require a federal judge's recusal.[3])

This blog series will briefly address the status of judicial ethics in the United States, which shows that codes of judicial ethics are not the exception but the rule. It will also discuss the cause of the Court's current tainted ethical status. Given the prevalence of formalized comprehensive codes of judicial ethics throughout the court system, but excluding the Supreme Court, it is strange and concerning that the highest court in the land has never had any formal comprehensive set of rules addressing judicial ethics. As the debate turns to a solution, however, the issue becomes whether the Constitution allows Congress to take control of an area that has always been so securely within the judicial branch's purview. Congressional control over judicial ethics, including disqualification, poses a serious threat to judicial independence. On the other hand, if there were a non-partisan scheme of oversight that would only result in legitimate disqualifications then there would be no threat. Furthermore, Congress already promulgates rules that apply to federal judicial officers as well as other federal officers, so regulation of Supreme Court justices may not be so far afield from currently accepted practices. Still, the least problematic solution would be for the Court itself to adopt the necessary proposed reforms.

 [1] Guide to Judiciary Policy, Code of Conduct for United States Judges, Vol. 2A, Ch. 2, Canon 1, last revised June 30, 2009, 2, available at http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/RulesAndPolicies/conduct/Vol02A-Ch02.pdf.

[2] Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, 2266-67 (2009) (internal citation omitted).

[3] Id. at 2267.

Building a Better Legal Profession (BBLP) is an organization based at Stanford Law School.   BBLP is a national grassroots movement that seeks market-based workplace reforms in large private law firms. For more information, visit BBLP's Web site at www.betterlegalprofession.org.

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