On Nov. 13 the U.S. Supreme Court issued an ethics code for the first time in its history. The Supreme Court made the decision to formally release a code to “dispel” the “misunderstanding that the Justices of this Court … regard themselves as unrestricted by any ethics rules.” The statement of the court further noted the code “largely represents a codification of principles that [the Justices] have long regarded as governing [their] conduct.”
The principles of the code are outlined in five canons and cover the integrity and independence of the judiciary, avoiding impropriety and the appearance of impropriety, performing the duties of office fairly, impartially and diligently and rules around extrajudicial activities and political activity.
To gauge what this new code means for the Supreme Court, and to put in context compared to Colorado’s own judicial standards, Law Week talked to Eli Wald, the Charles W. Delaney Jr. Professor of Law at the University of Denver Sturm College of Law, and Don Samuels, Colorado Judicial Institute’s board chair and a partner at Polsinelli.
Only Unprecedented in the Context of the Supreme Court
The Supreme Court has operated without a formal code of conduct for its 234 years of existence. This stands in contrast to much of the legal profession, including the judicial system in Colorado.
Samuels told Law Week “Colorado has long had a formal, written judicial code of ethics that has been updated over the decades in response to our changing society.” In addition to the formal code of ethics, Samuels noted judges in Colorado have the Colorado Judicial Ethics Advisory Board if they need more guidance.
Wald, who serves on that board, told Law Week “it would not be accurate to say that it’s unprecedented for lawyers, and in this case judges, to at least hear the public outcry and try in some fashion to respond to it.” To illustrate this, Wald brought up the example of the American Bar Association’s revision of its Model Code of Professional Conduct following the Watergate scandal. Wald said that while the ABA may have adopted the new model rules without Watergate, “few people doubt” the urgency and speed with which the new code was adopted “had something to do with the public outcry and the pressure.”
A Step to Restoring Public Trust, with a Caveat
The release of the new code comes at a time when public trust in the Supreme Court remains near record lows. According to a September Gallup poll, only 41% of adults approve of the job the Supreme Court is doing. Disapproval of the Supreme Court is particularly low among Democrats and independents. The same poll found only 23% of Democrats and 40% of independents approve of the Supreme Court’s job performance. The highest rate of approval was found among Republicans at 56%.
Samuels told Law Week “CJI welcomes the U.S. Supreme Court’s adoption of its new code of ethics,” and that “this commitment to clarity around ethical issues, similar to what we already have here in Colorado, can only help promote more public trust in the judicial system.”
Wald echoed similar thoughts, saying “it’s a positive development” and “a step in the right direction,” as it “actually adopts a code of conduct for the U.S. Supreme Court.” However, Wald noted the code was “weak in comparison to other codes of conduct, including those that apply to federal judges, and to various codes of conduct that apply to state judges, including those in Colorado.”
There were aspects of the code in particular that caught Wald’s attention as weak. The first concerned the provisions around financial disclosure and disqualification. He said the code lacked “many provisions that one would understand as onerous, or one would understand as particularly demanding, when it comes to important areas like disqualification and the lack of financial disclosure.”
In addition, Wald told Law Week the code includes an exception to the disqualification grounds that “may threaten to swallow the rule.” Wald said the exception comes in the form of the rule of necessity in the code, which means that a judge can “override the disqualification rule and stay” on the case “because it’s necessary, and it’s not clear exactly what the rule of necessity means.”
The second aspect Wald discussed was the lack of an enforcement mechanism. Wald said the code “stands unique because any other judge, federal or state judge, is not only subject to a code of conduct,” but “subject to an enforcement mechanism that is designed to ensure compliance and increase the trust and confidence of the American people in their courts.”
It remains unclear what effect this code will have on restoring trust in the judiciary or in affecting the behavior of the Supreme Court justices. However, Wald viewed the new code as “unlikely to have any real kind of impact on the conduct of the justices because the demands of the code are minimal.”