At its first mid-year meeting of 2023, the American Bar Association asked the U.S. Supreme Court to adopt a binding code of ethics for justices as public perception of the court is low.
The 591-member House of Delegates, which considers and passes policy measures for the national bar association, hosted its first 2023 midyear meeting from Feb. 1-6 in New Orleans where it considered and passed a number of resolutions that create the ABA’s official stance on matters around the practice of law in the U.S.
On top of the resolution taking aim at ethics for the U.S. Supreme Court, the House of Delegates also approved measures condemning antisemitism and the Russian invasion of Ukraine and green-lighted a measure that urges state attorney licensing entities to remove questions about someone’s sexual orientation and gender identity from bar applications.
The group also rejected a measure that would no longer obligate ABA-accredited law schools from requiring LSAT or GRE scores for applicants. But efforts to axe standardized test scores on law school applications aren’t dead yet. The decision to kill or adopt the change rests with the ABA’s Section of Legal Education and Admissions to the Bar council which meets Feb. 17.
A headlining resolution passed by a voice vote from the House of Delegates was Resolution 400 which urges the U.S. Supreme Court to adopt a binding code of ethics for all justices “comparable to the Code of Conduct for United States Judges adopted by the Judicial Conference of the United States” in 1973. The resolution also asks other bar associations to urge the Supreme Court to adopt a binding code of ethics.
Resolution 400 was introduced only two weeks before the meeting by Washington’s King County Bar Association. Proponents of the motion argued it’s needed to bolster public trust in the Supreme Court while a number of other delegates urged the group to postpone the motion.
“This resolution may be one of the most consequential ones that we will have a conversation about during this house,” said Washington state delegate James Williams, who introduced the resolution.
Williams and other supporters of the motion argued the ABA’s endorsement of a code of conduct is needed to bolster public and professional trust in the U.S. Supreme Court as studies show declining public trust in the court and renewed calls for reform.
Surveys last year by Gallup and the University of Pennsylvania’s Annenberg Public Policy Center found over half — 58% and 53% respectively — of American adults disapprove of the U.S. Supreme Court’s administration. The surveys also found declining trust in the court and more Americans reported beliefs the court is influenced by partisan politics.
Conversations around reforms for the high court have ignited in recent years after several of the court’s current justices were confirmed under contentious political environments and in the wake of a number of controversial rulings last term.
In 2021, a commission created by Pres. Joe Biden published its final report on Supreme Court reforms and found widespread support for creating term limits for justices.
Supporters of ABA’s resolution emphasized that while conversations around reform for the U.S. Supreme Court have existed for years, taking an official stance on some of the efforts is needed now.
Former ABA President and Arizona delegate Patricia Lee Refo spoke in support of the resolution and said without its passage, the ABA cannot take an official position on any proposed legislation. She explained in recent years, Congress has introduced legislation that would create a code of ethics and she expects similar bills to be introduced in the near future.
“In the absence of the passage of this resolution, we will be on the sidelines, unable to speak a word about a topic that is central to the core of who we are and what we do,” said Lee Refo.
Opponents to passing the measure emphasized that while they support creating a code of ethics, they feared the resolution was introduced too soon and without enough input from stakeholders.
Richard Bien, an ABA delegate from the Judicial Division and Missouri, introduced a motion to postpone Resolution 400 until the ABA’s annual meeting in August. Bien, and a handful of other delegates, argued the resolution was introduced hastily and without a chance for all ABA stakeholders to review and give input on it.
Bien argued that while the resolution doesn’t offer a specific code, the word “binding” and references to the Code of Conduct for United States Judges effectively make the resolution a proposed code of ethics for the Supreme Court.
“We need to use the processes available to us and the expertise of the judicial conferences and of the standing committees to make the best possible resolution we can,” said Bien.
Passage of the motion doesn’t mean the U.S. Supreme Court will adopt a code of ethics, but does place the official endorsement of the ABA behind proposed reform.
While attorneys and federal and state judges have to abide by a code of ethics, Supreme Court justices aren’t bound by a formal code.
Another highly-watched policy that failed to pass the House of Delegates was Resolution 300, which would’ve removed standardized test score requirements for ABA-accredited law school applicants.
Proponents of the resolution argued reliance on standardized test scores, like LSATs and GREs, reduces diversity in the profession and creates barriers for prospective law students who don’t have as many resources to study and prepare for the exams. They also argued that requiring test scores prevent law schools from using more flexible admission standards and other accrediting bodies, like those for medical school, don’t make test scores a condition for accreditation.
Opponents of the resolution argued that LSAT scores bolster diverse law school admissions since it can supplement lower undergraduate GPAs and increase admission rates for diverse students.
While members didn’t pass the resolution, it will be referred back to the group’s section on legal admissions to the bar and could be voted on for its second and final time in August.
The ABA 2023 annual meeting will be held Aug. 2-8 in Denver.