Introduction

In an effort to promote the “integrity and independence of the judiciary,” the Code of Conduct for United States Judges establishes and enforces standards of ethical conduct for all federal judges. Initially adopted in 1973, the Code includes five ethical canons governing issues such as recusal, judicial integrity and impartiality and permissible extra-judicial activities, and provides federal judges with guidance on the performance of their official duties. Coupled with congressionally-mandated financial disclosures to help ensure that judges do not hear cases in which they have a financial conflict of interest, the Code has been helpful in ensuring that the behavior of federal judges upholds the independence of the judiciary. However, the Code has never been applied to the members of the nation’s highest court—the Supreme Court. 

The Supreme Court’s nine justices are the only federal judicial officers who are not subject to a specific and binding code of ethics. Instead, justices “consult a wide variety of authorities to address specific ethics issues,” including judicial opinions, treatises, scholarly articles, disciplinary decisions and the historic practices of the court—all of which are advisory and many of which are open to individual interpretation. Although justices in theory are subject to the federal disqualification statute, the Ethics in Government Act, and the Ethics Reform Act, the Court has no transparent enforcement mechanisms for these standards. In practice, this has led  to inconsistent decisions on recusal and disclosure, sometimes resulting in conduct that causes the public to question a justice’s impartiality.

In his 2011 year-end-report, Chief Justice Roberts explained that the Court “has had no reason” to adopt a code, maintaining that the Court’s current system is sufficient to maintain the public’s trust in the Court’s integrity. However, as our nation’s political environment has become increasingly polarized, this stance has become more difficult to defend. While historically both conservative and liberal justices have engaged in conduct that at least arguably would not be permitted under the Code of Conduct for United States Judges, in the present context such conduct has had an apparent and increasingly adverse effect on the Court’s legitimacy.  

That is why we call upon the Supreme Court to adopt both a formal code of ethics and an independent oversight mechanism that will enable justices to obtain impartial advice about ethical questions. In this paper, we endorse the application, with appropriate adjustments given the Court’s unique constitutional status, of the provisions of the current Code of Conduct for United States Judges to the Supreme Court. Equally important, we propose a recusal mechanism whereby the chief justice would designate a panel of retired federal judges with deep experience and unquestioned integrity to advise justices with respect to motions for disqualification and provide the justices with confidential advice as to their obligations under the laws, rules, and standards governing their conduct. The mechanism we propose is not intended as an idealistic approach but rather a realistic solution given the Court’s unique role in our nation’s constitutional scheme; one which we believe to be respectful of the Court’s institutional independence, and which the public can see as a step towards accountability and transparency. 

Public faith in the judiciary is at its lowest levels since Gallup began polling about it in 1972. It is time for the Supreme Court to take meaningful steps to begin the process of restoring credibility and public trust and, in so doing, strengthen the foundations of our democracy. We believe that our proposal does just that.

History of judicial ethics

Modern-day judicial codes of conduct trace their inception to the 1789 Judiciary Act, in which Congress prescribed the official oath for all federal judges, including Supreme Court justices. The oath requires judges and justices to pledge to “faithfully and impartially” discharge the duties of the office. In 1792, Congress passed the first federal disqualification statute, codified in 28 U.S.C. § 455, which requires a judge or justice to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

The idea of a formal code of ethics for judges came later. In 1920, a scandal rocked the judiciary when Chicago-based federal Judge Kenesaw Mountain Landis accepted a job as Major League Baseball’s first commissioner without stepping down from the bench.  Questions immediately emerged about the propriety of a judge holding both positions simultaneously, even leading to an impeachment effort in Congress. Although the House Judiciary Committee dropped the impeachment effort, a few months later the American Bar Association adopted a resolution condemning Judge Landis’s behavior as “undermining public confidence in the independence of the judiciary.” The following year, it formed a commission on judicial ethics—headed by then-Chief Justice William Howard Taft—to draft a judicial code of conduct. Two years later, in 1924, the ABA adopted its first code—the Canons of Judicial Ethics—intended to serve as a model for the states. The issue of impartiality and Judge Landis’s questionable conduct was front and center, with the code advising that a “judge should avoid both impropriety and the appearance of impropriety.” In the following years some version of the Canons was adopted by every state in the nation, but it was not until 1973 that it was adopted and applied to federal judges.

The Judicial Conference of the United States, the policy-making body of the federal courts, officially adopted the Code in response to a different scandal, this one surrounding Justice Abe Fortas’s 1968 nomination to be Chief Justice. Although Justice Fortas had been confirmed to the Supreme Court only three years earlier, when President Johnson sought to elevate him to be Chief Justice it was revealed that his former private practice clients were paying Justice Fortas’s salary to teach summer school at American University. That revelation scuttled his nomination to be Chief Justice, and then another financial scandal the following year forced him to resign from the Court.

Although it was a Supreme Court ethics scandal that led to the adoption of the Code of Conduct for United States Judges, the Judicial Conference did not apply the Code to the high court. Indeed, in his 2011 end-of-year report, Chief Justice Roberts made clear that by “its express terms,” the Code applies only to lower federal court judges. The Chief Justice reasoned that because Congress created the Judicial Conference as an instrument of the lower federal courts, “its committees have no mandate to prescribe rules or standards for any other body.”

Federal judicial ethics regulations

Without a formal code of conduct in place, the Supreme Court’s current ethical framework is a black box, and the justices’ compliance with it is enforced only through self-monitoring. However, there are three ethics-related statutes that appear to apply to Supreme Court Justices: (1) the Ethics in Government Act (5 U.S.C. § 13104),(2) the Ethics Reform Act (5 U.S.C. § 7353), and (3) the federal disqualification statute (28 U.S.C. § 455).   

The Ethics in Government Act: 5 U.S.C. § 13101, et al.

The Ethics in Government Act requires numerous categories of federal officials, including Supreme Court Justices, to file annual financial disclosure forms which detail outside income and spouses’ sources of income, among other things. Sanctions for violation of the Act include civil and criminal penalties, although a Supreme Court Justice has never been charged with violating the Act and proceedings involving lower court judges are exceedingly rare.

The Judicial Conference Regulation on Financial Disclosure implements the Act by articulating what must be disclosed and what is excluded from disclosure by judicial officers, including Supreme Court Justices. The regulations include an exemption for personal hospitality which was intended to allow officials to accept invitations to travel, dine and stay with friends without having to report it. The former version of this exemption led to several notable instances in which justices failed to disclose certain expensive gifts that they should have otherwise disclosed. In March 2023, the Judicial Conference revised the regulation to define “personal hospitality” more clearly and provide examples of what the exemption does not include.

The Ethics Reform Act: 5 U.S.C. § 7353

Like lower court judges, Supreme Court Justices are barred by the Ethics Reform Act, 5 U.S.C. § 7353, from soliciting or accepting gifts from anyone seeking official action from, or doing business before, their court, or from any other person whose interests may be substantially affected by the performance or nonperformance of the judicial officer’s official duties. Penalties for violating section 7353 consist mainly of administrative and disciplinary action, although a Supreme Court Justice has never been charged with violating the Act.

Although justices technically are not subject to the Judicial Conference Regulation on Gifts which implements section 7353 by regulating what gifts can and cannot be accepted by judges, the justices have said that they follow the regulation as a matter of internal practice.

Disqualification Statute: 28 U.S.C. § 455

28 U.S.C. § 455 requires all federal judges, including Supreme Court Justices, to recuse themselves from any judicial proceedings in which their impartiality might reasonably be questioned, including  when their spouse or other member of their household or immediate family has “any other interest that could be substantially affected by the outcome of the proceeding.”

Despite these rules, conflicts of interest at the lower court level are far from rare. A 2021 Wall Street Journal investigation found that at least 131 federal judges likely violated 28 U.S.C. § 455 by hearing cases in which they had a financial interest in one of the parties and that 61 judges or their family members actively traded shares in a party to an ongoing case. Although many of these violations appear to have been inadvertent, the investigation undoubtedly cast the judges involved in a negative light.

Despite the statute’s clear language, there is no way to enforce section 455 at the Supreme Court, as the justices decide for themselves whether recusal is required. Moreover, when they do recuse, more often than not they do so without any explanation, leaving the public to wonder what, if any, process the justice went through to reach the decision.

The code of conduct for United States judges and proposed revision

The Code of Conduct for United States Judges is the product of thoughtful deliberation and revision. It is composed of five ethical canons that provide judges “guidance on their performance of official duties and engagement in a variety of outside activities.” Canon 1 states that a “judge should maintain and enforce high standards of conduct” to preserve the independence of the judiciary. Canon 2 provides that a judge should avoid impropriety and the appearance of impropriety in all activities. Canon 3 discusses a judge’s duty to perform their job in a fair, impartial and diligent manner. Canon 4 permits a judge to engage in extrajudicial activities so long as they are consistent with the obligations of the judicial office, but not those that “detract from the dignity” of the office, “interfere with the performance” of official duties, “reflect adversely” on one’s impartiality, “lead to frequent disqualification,” or violate certain limitations outlined in the canon. And finally, Canon 5 prohibits a judge from engaging in political activity, such as making speeches for a political organization, or acting as a leader or holding any office in a political organization. Although the Code has been revised several times, the most significant revision arguably is the difference between the original 1924 canons and the 1972 and 1990 Model Codes, which incorporated the use of mandatory language, making the model code enforceable for the first time.

We think the Code should be applied to Supreme Court Justices with relatively few revisions, not least because most Supreme Court Justices previously served on lower courts and thus are thoroughly familiar with the Code’s prohibitions. 

The principal area requiring special consideration is recusals. In his 2011 Annual Report, the Chief Justice explained that some of the general principles for recusal that apply to lower court federal judges cannot easily be applied to justices because of  the unique circumstances of the Supreme Court:

Lower court judges can freely substitute for one another…But the Supreme Court consists of nine Members who always sit together, and if a Justice withdraws from a case, the Court must sit without its full membership. A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each Justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.

The risks associated with recusal also were explained in Justice Antonin Scalia’s opinion denying a recusal motion in a case involving a White House energy task force headed by Vice President Cheney, whom the justice had recently accompanied on a duck-hunting trip in 2003. In this rare and lengthy public statement declining to recuse, Justice Scalia explained that a  justice recusing “out of an excess of caution” would “utterly disabl[e]” the Court by potentially leaving the Court with a four-four division.

The Chief Justice and Justice Scalia are correct; unlike a lower court judge, a recused justice  cannot simply be replaced. But from the perspective of public trust and confidence, it is more important to have an ethical court than a fully constituted one. That is why a formal Code of Conduct is so important—so that justices will have clear rules as to conduct in which they may and may not engage so as to limit the need for recusal in the first place. Regardless of whether one agrees with Justice Scalia’s ultimate decision, his commendable effort to explain his thinking publicly remains rare, with Justice Elena Kagan recently following his lead and providing a brief explanation on her decision to recuse in a death row case.

Adopting a formal code won’t make controversies about recusals disappear, but it should limit the need for recusals by providing justices with a common framework for ordering their lives and professional engagements. Accordingly, our proposed code includes a sixth canon, which adopts a formal and transparent recusal process for the justices. This sixth canon balances the unique position occupied by Supreme Court Justices against the principle that not only actual but also apparent impropriety or conflict of interest is unacceptable and destabilizing to the legitimacy of the judiciary. 

The proposed canon provides that a justice should recuse in a variety of instances including those in which the justice has a personal bias; has served as a lawyer in the matter in controversy; has certain financial relationships or interests; and in certain situations involving lobbying or lobbying contact. These categories reflect the categories of conduct warranting recusal as identified in federal statutes, historical practice and proposed legislation. The canon also creates a process for parties to file a certified motion to disqualify a justice with an independent panel of retired federal judges that will review the merits of the motion and offer an advisory confidential opinion to the justice.

This panel, the members of which would be appointed by the Chief Justice, would consist of former federal judges with deep expertise and unquestioned integrity.  The panel also could provide justices confidential counsel and an outside perspective to help them make more informed decisions on the application of laws, rules, and standards which govern their official conduct.

In support of its overarching goal of restoring public trust and confidence in the Court, the canon also would require that the panel submit an annual report indicating the number of motions received and advisory opinions provided, to be published concurrently with the Chief Justice’s annual report. 

We recognize that this reporting requirement will be viewed by some as inadequate oversight. But as we stated at the outset, this proposed canon is intended to be a modest step forward. With public confidence in the judiciary under seemingly unrelenting attack, any proposal that recognizes both the Court’s institutional independence and the public’s need for meaningful transparency is a step in the right direction. 

Conclusion

Every major evolution of our nation’s  judicial ethics framework has been born out of high-profile controversies involving judges and justices. Today, we find ourselves once again at such an inflection point.

Chief Justice Roberts has repeatedly made clear that he cares deeply about the integrity of the Supreme Court. Taking the bold step of adopting a formal code that commits the nine justices to coherent and transparent ethical guidance would be a legacy of which the Chief Justice and his colleagues can be proud. In particular, the recusal process that we propose, which includes utilizing experienced and respected retired federal judges, would bolster the integrity of the institution in a way that stays true to the judiciary’s independence by involving individuals with an intimate understanding of the Third Branch and its culture.

We do not believe that Supreme Court Justices should lead monastic, isolated lives. On the contrary, we believe that clear ethical standards, codified in a formal code, would begin to rebuild public trust in  our nation’s highest court and allow the justices to engage in public life in a way that leads to confidence instead of scrutiny.

 

 

Appendix: recusal canon

General prohibitions 

A justice should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A justice should neither lend the prestige of the judicial office to advance the private interests of the justice or others nor convey or permit others to convey the impression that they are in a special position to influence the justice. A justice should not testify voluntarily as a character witness. 

An appearance of impropriety occurs when reasonable minds, with knowledge of all relevant circumstances disclosed by a reasonable inquiry, would conclude that the justice’s honesty, integrity, impartiality, temperament or fitness to serve as a justice is impaired. 

Public confidence in the judiciary is eroded by irresponsible or improper conduct by justices, conflicts of interest, harassment and other inappropriate workplace behavior. A justice must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A justice must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen. Because it is not practicable to list all prohibited acts, the prohibition is necessarily cast in general terms that extend to conduct by justices that is harmful although not specifically mentioned in the code. Actual improprieties under this standard include violations of law, court rules, or other specific provisions of this code. 

The prohibitions outlined below recognize the unique position occupied by Supreme Court justices. Unlike lower court judges, a recused justice cannot be replaced in the event of a recusal. However, particularly because the Supreme Court often is seen as representative of the entire judiciary, the importance of the principles set forth in this code outweighs the need to have a fully constituted court in cases in which a justice’s participation is prohibited pursuant to those principles. It is vitally important that the public understand that justices make informed decisions about their participation in a given matter and that even the perception of impropriety or a conflict of interest is unacceptable and damaging to the legitimacy of the judiciary. 

  1. Disqualification
    1. General – A justice shall disqualify himself or herself in a proceeding in which the justice’s impartiality might reasonably be questioned, including but not limited to instances in which:
      1. The justice has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
      2. The justice served as a lawyer in the matter in controversy, or a lawyer with whom the justice previously practiced law served during such association as a lawyer concerning the matter, or the justice or lawyer has been a material witness;
      3. The justice knows that the justice, individually or as a fiduciary, or the justice’s spouse or minor child residing in the justice’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding;
      4. The justice or the justice’s spouse, or a person related to either within the third degree of relationship, or the spouse of such a person is:
        1. A party to the proceeding, or an officer, director, or trustee of a party;
        2. Acting as a lawyer in the proceeding;
        3. Known by the justice to have an interest that could be substantially affected by the outcome of the proceeding; or
        4. To the justice’s knowledge likely to be a material witness in the proceeding;
      5. The justice has served in governmental employment and in that capacity participated as a justice (in a previous judicial position), counsel, advisor, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy.
      6. The justice knows that a party to the proceeding or an affiliate of a party to the proceeding:
        1. Made direct lobbying contact with the justice; or
        2. Had a significant and disproportionate influence in placing the justice on the court by raising funds for or directing the justice’s nomination, confirmation, or appointment when the case at issue was pending or imminent.
        1. The inquiry by the justice should center on the contribution’s relative size in comparison to the total amount of money contributed to the justice’s nomination, confirmation, or appointment, the total amount spent, and the apparent effect such contribution had on the outcome of the nomination, confirmation, and appointment.
      7. Where the justice, their spouse, minor child, or a privately-held entity owned by such person –
        1. received income, a gift, or reimbursement (as such terms are defined in Section 109 of the Ethics in Government Act of 1978 (5 USC App.) from a party to the proceeding or an affiliate of a party to the proceeding; and
        2. such receipt occurred during the period beginning 6 years prior to the date on which the justice was assigned to the proceeding and ending on the date of final disposition of the proceeding.
    2. A justice should stay informed about the justice’s personal and fiduciary financial interests and make reasonable effort to keep informed about the personal financial interests of the justice’s spouse and minor children residing in the justice’s household.
    3. For the purposes of this canon:
      1. The degree of relationship is calculated according to the civil law system; the following relatives are within the third degree of relationship: parent, child, grandparent, grandchild, great grandparent, great grandchild, sister, brother, aunt, uncle, niece, and nephew; the listed relatives include whole and half-blood relatives and most step relatives;
      2. “Fiduciary” includes such relationships as executor, administrator, trustee, and guardian;
      3. “Financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, advisor, or other active participant in the affairs of a party, except that:
        1. Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the justice participates in the management of the fund;
        2. An office in an educational, religious, charitable, fraternal, or civil organization is not a “financial interest” in securities held by the organization;
        3. The proprietary interest of a policyholder in a mutual insurance company, or a depositor in a mutual savings association, or a similar proprietary interest is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
        4. Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities;
      4. “Proceeding” includes pretrial, trial, appellate review, or other stages of litigation
    4. Notwithstanding the preceding provisions of this code, if a justice would be disqualified because of a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice (or the justice’s spouse or minor child) divests the interest that provides the grounds for disqualification.
    5. Remittal of Disqualification—Instead of withdrawing from the proceeding, a justice disqualified by this code may, except in the circumstances specifically set out in subsections (a) through (e), disclose on the record the basis for disqualification. The judge may participate in the proceeding if, after that disclosure, the parties and their lawyers have an opportunity to confer outside the presence of the justice, all agree in writing or on the record that the justice should not be disqualified, and the justice is then willing to participate. The agreement should be incorporated in the record of the proceeding.
    6. Disqualification considerations applicable to a justice’s spouse should also be considered with respect to a person other than a spouse with whom the justice maintains both a household and an intimate relationship.
      1. In a criminal proceeding, a victim entitled to restitution is not, within the meaning of this code, a party to the proceeding or the subject matter in controversy. A justice who has a financial interest in the victim of a crime is not required by Canon 3(1)(c) to disqualify from the criminal proceeding, but the judge must do so if the justice’s impartiality could reasonably be questioned under Canon 3C(1) or if the justice has an interest that could be substantially affected by the outcome of the proceeding under Canon 3C(1)(d)(iii).
      2. The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the justice is affiliated does not of itself disqualify the justice. However, if the justice’s impartiality might reasonably be questioned under Canon 3C(1), or the relative is known by the judge to have an interest in the law firm that could be substantially affected by the outcome of the proceeding under Canon 3C(1)(d)(iii), the justice’s disqualification is required.
  2. Review of Certified Motions to Disqualify
    1. Motion for Disqualification – If a justice should be disqualified from a proceeding under the above provisions or under any provision of law, a party to the proceeding or the solicitor general may file a timely motion for disqualification with the Court. The motion shall be forwarded to the Court’s Legal Office for review and processing.
      1. In General– The motion shall be filed in writing and under oath consisting of an affidavit or declaration under penalty of perjury accompanied by a certificate of good faith alleging facts sufficient to show a prima facie case that disqualification of the justice is so required.
        1. The motion shall state, with specificity, all factual and legal grounds supporting disqualification of the justice, including:
          1. A short statement of the issue presented for review;
          2. A statement of the facts, setting forth the facts relevant to the issue(s) presented for review;
          3. A brief argument, setting forth the conventions of the party with respect to the issues presented, and the reasons therefore, including the reasons why the contentions require disqualification, with citations to the authorities, as appropriate;
          4. A short conclusion, stating the precise relief sought;
          5. An affirmative statement that the motion is not being presented for any improper purpose, such as to harass or to cause unnecessary delay; and
          6. A certification of the date or dates when the party first became aware of the facts set forth in the motion.
      2. Timing – The motion shall be made promptly after a party learns or reasonably should have learned of the facts establishing the basis for recusal. The motion shall be filed no later than 10 days after the granting of certiorari, absent a showing of good cause which must also be supported by an affidavit.
    2. Consideration of motion by Legal Office – The Court’s Legal Office shall promptly review the certificate of good faith and affidavit to determine whether a prima facie case for disqualification has been made.
      1. Referral to Reviewing Panel – If the Legal Office determines that a prima facie showing has been made, it shall certify the motion in writing to the reviewing panel within 30 days of receipt so that a timely and prompt advisory determination by the reviewing panel can be made with respect to the motion.
      2. No Undue Delay – The filing of a motion for disqualification and the consideration of that motion shall not unduly delay the proceedings.
    3. Reviewing panel
      1. In General – A reviewing panel to which a motion is filed shall be selected by the Chief Justice of the United States to serve for a term of three (3) years. The Chief Justice shall appoint the members of the panel within 60 days of adoption of this code.
        1. Composition – The reviewing panel shall consist of three (3) judges.
        2. Selection Qualifications – The reviewing panel shall consist of three members, each of whom shall be a circuit court judge under 28 USC Section 44 who is retired under 28 U.S.C. Section 371(b) or Section 372(a) (applicable to all Article III judges), or a retired Article III judge who is also a former member of the Judicial Conduct and Disability Committee of the Judicial Conference of the United States.
      2. Change in status or death of judges – If a member of the reviewing panel under section (a) dies, steps down, or is otherwise incapacitated, the Chief Justice shall appoint another member to the reviewing panel within 60 days of when a vacancy arises, as prescribed by the requirements above, to serve out the remainder of the three year term.
    4. Consideration of motion by reviewing panel
      1. Timing and notice of review – The reviewing panel shall convene (virtually or in person) no later than 30 days after receiving a motion to disqualify and shall immediately provide written notice to the complainant and to the justice whose conduct is the subject of the disqualification/recusal motion.
      2. Investigation by reviewing panel – The reviewing panel shall investigate the facts and allegations contained in the certified motion.
      3. Confidential advisory opinion – The reviewing panel shall evaluate the merits of the recusal at issue and provide a confidential advisory opinion to the justice as to whether or not the justice ought to recuse.
    5. Advisory opinions, generally – Any justice or senior officer of the court (clerk, counselor, or legal counsel) after consultation with the justice, may request a confidential, informal opinion from the reviewing panel on the application of laws, rules, and standards which govern the justice’s official conduct.
      1. Definition of informal opinion – An informal opinion is one which is provided to the justice or senior officer orally or in writing and is not binding on the panel or the justice.
    6. Annual Report – For each calendar year, the reviewing panel shall submit to the public in writing the number of motions received and advisory opinions provided. This notice shall be published concurrently with the Chief Justice’s annual report.

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