II. Judicial Ethics
The Justices of the U.S. Supreme Court are the only members of the federal judiciary who are not covered by a code of conduct. Since 1973, the United States Judicial Conference has composed and updated an advisory Code of Conduct directed to all other federal judges. That Code, by its own terms, is not addressed to the Justices.
In a 2011 year-end report, Chief Justice Roberts addressed concerns over the Justices’ exclusion from the Code. He emphasized that “All Members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations. In this way, the Code plays the same role for the Justices as it does for other federal judges since … the Code ‘is designed to provide guidance to judges.’”[120] In 2019, during an appropriations hearing in Congress, Justice Kagan similarly stated that the Justices follow the Code to the very best of their ability.[121]
There is some debate over whether the Justices always follow the Code even if they do consult it.[122] The Commission has not undertaken a study of the Justices’ adherence to the standards in the existing Code and makes no finding in this respect. Regardless of whether the Justices do consult and follow the existing Code, not having a formally adopted code might not be best practice for the Court. On this view, even if there were no apparent issue with ethical practices on the Court, the explicit adoption of a code could promote important institutional values. Most significant public and private entities have adopted codes of conduct for their organizations and employees.[123] It is not obvious why the Court is best served by an exemption from what so many consider best practice. To bring the Court into alignment with other courts and entities, some observers argue that the Supreme Court should adopt a code of conduct—either the existing Code applicable to other judges or its own version of a code—or that Congress should impose one.
The discussion of whether the Court should adopt a code of conduct has included a further discussion about whether the Justices should be subject to a disciplinary framework as well. The Justices are not subject to the complaint and discipline framework that applies to other federal judges. The Judicial Conduct and Disability Act of 1980 allows for any person to file a complaint against a federal judge alleging that the judge “engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts” or “is unable to discharge all the duties of office by reason of mental or physical disability.”[124] The Code of Conduct can be relevant to determining whether a judge has engaged in prejudicial conduct. However, the Judicial Conduct and Disability Act excludes the Justices from its reach.[125]
