The Status of the SCOTUS Code of Conduct
The release on Monday of a Code of Conduct for Justices of the Supreme Court was met with almost instantaneous scorn by people and organizations who had been complaining about the lack of such a code and questioning the conduct of various Justices, especially Justice Thomas. These critics pointed out--correctly--that the Code contains no enforcement mechanism. As the official statement of Take Back the Court puts it, "With 53 uses of the word ‘should’ and only 6 of the word ‘must,’ the court’s new ‘code of ethics’ reads a lot more like a friendly suggestion than a binding, enforceable guideline." I would point out that even if the Code used the words "shall" and "must," it would still be best characterized as hortatory, given the lack of any enforcement provisions.
I'll return below to the question of enforcement, but first I want to make a further observation that I have not seen others make: I find it significant that while the introductory page to the Code is designated as a "Statement of the Court," the Code itself is a document signed by all nine Justices. I want to suggest that, perhaps counter-intuitively, that fact makes the Code less official than it otherwise might have been.
Famously, the Supreme Court has only ever issued one opinion signed by all nine Justices: in Cooper v. Aaron, each Justice was listed as the author of the ruling that Arkansas Governor Orval Faubus and the Little Rock schools were not entitled to defy the desegregation mandate of Brown v. Board. Issuing the opinion with all nine signatures was a means of underscoring the Court's resolve--substantially more so than a regular unanimous opinion with a single author or one designated as per curiam would have been.
By contrast, issuing the Code of Conduct with the signatures of all nine Justices conveyed the opposite impression--at least to me. It signaled that the Code was a voluntary undertaking by the Justices, each acting in an individual capacity, rather than an official Court document.
Could the Court have issued its Code as an official document of the Court as an entity rather than as the product of individual voluntary undertakings? I don't see why not. As Professor Scott Dodson has documented, Congress has allowed the Court wide leeway in promulgating the Rules of the Supreme Court. There is no reason in principle why the Court could not have issued its Code of Conduct as an addendum to its Rules or as a standalone document of comparable authority.
Of course, whether promulgated by the Justices in their individual capacity or the Court as a whole, there is the limitation noted above: no enforcement mechanism. Could the Court have adopted one? Here too, I don't see why not. The Court as a whole or each of its Justices could have committed to abide by a disciplinary process similar to the one that applies to lower federal court judges: initial referral of complaints to the Chief Justice (by parallel with the submission of complaints to chief judges) with the possibility of appeal to a multi-member body like the Judicial Council.
Discipline for a lower federal court judge cannot result in the judge's removal--which can be accomplished against the judge's will only through impeachment--but possible sanctions include public or private reprimand or censure and the possibility of temporary ineligibility to hear cases. Censure and reprimand could be used for Supreme Court Justices. Temporary ineligibility is trickier, given that, unlike lower court judges, when Supreme Court Justices are not available to sit, no one replaces them. That's why the Code provides for the possibility that a Justice who has reason to recuse should sometimes nonetheless sit on a case. Even so, official public censure of a Supreme Court Justice for ethical misconduct would be a serious shaming penalty--one that could not be dismissed as "a political hit job."
To be sure, the disciplinary system for lower court judges is hardly perfect, as Professor Segall forcefully explained on this blog just a few days ago. Moreover, for public censure to operate effectively, the object of censure must be capable of experiencing shame. Some observers might conclude that one or more Justices are shameless.
That said, a Code that is enforced through shaming penalties would have greater weight than one that has no enforcement mechanism at all. Can anything be done to impose stricter rules?
As I explained in August, notwithstanding Justice Alito's fatuous claim to the contrary, Congress has substantial power to regulate the Supreme Court, including with respect to its ethics. To date, it has declined to exercise that power out of deference to the Justices. But deference must be earned, and on this score the Court has failed.
The introduction to the Court's newly minted Code describes the document as "a codification of principles that [the Justices] have long regarded as governing [their] conduct." In other words, members of Congress concerned by the conduct of Justice Thomas and various of his colleagues should not be reassured by the adoption of a Code: the concerning conduct occurred when the Justices were supposedly already complying with the Rules only now codified and made public. If the substance of this Code has failed to rein in the conduct that members of Congress deem troubling--and it has--that is reason for Congress to write a stricter code for the Justices, one that contains penalties and not simply exhortations.