On June 21, 2019, a subcommittee of the U.S. House Judiciary Committee heard testimony on H.R.1057. If enacted, the “Supreme Court Ethics Act” would direct the U.S. Judicial Conference to issue a code of conduct applicable to all federal judges, including Supreme Court Justices. Currently, federal judges other than U.S. Supreme Court Justices are subject to an ethics code.
The witnesses testifying before the subcommittee agreed that a conduct code for Supreme Court Justices would enhance public confidence in the judiciary. And that may be true. But before committing to a code for the Justices it might be worthwhile for an “exploratory drafting committee” to create a few proposed code provisions for examination and discussion. No code will satisfy everybody. But can a code be drafted that will satisfy anyone?
The exploratory committee would initially decide the sticky issue of whether code provisions applicable to the Justices would be mandatory or aspirational. If mandatory, an adjudicatory system must be established to process complaints by the public, litigants, bar, and partisan organizations. Presumably, the severity of the misconduct would dictate the level of discipline.
Enacting a purely aspirational code for the Justices creates its own difficulties.
For example, in testimony before the subcommittee, Professors Frost and Geyh noted the criticism leveled against Justices Thomas and Scalia for speaking at Federalist Society fund-raising events. The criticism was based on the commentary to Canon 4 of the Code of Conduct for (lower court) U.S. Judges that "prohibits" judges from speaking or serving as guests of honor at fund-raisers. Missed by the critics, however, is that the Canon 4 commentary is aspirational and lower court federal judges are not subject to discipline for violating the guideline. That fact is demonstrated by the frequency with which federal trial and appellate court judges speak and receive awards at fund-raising events. For example, in 2007, 2008, 2009, 2010, 2013, 2016, 2017, and 2018, federal judges were honored at the ABA Margaret Brent fund-raising luncheon (sponsorships $2,500 to $20,000; fund-raising ad journal; and $175 lunch ticket). So, even if Justices Thomas and Scalia were subject to the hortatory commentary to Canon 4, they, like their lower court colleagues, could freely speak and serve as honorees at fund-raising events.
Also deserving a top spot on the exploratory committee’s agenda is a code provision dictating the extent to which Supreme Court nominees may testify before the Senate Judiciary Committee concerning past Court decisions and legal, social, and political issues. The substance of that provision would probably depend on who writes it. If the Court or the Judicial Conference write the rule it would likely parrot the “Ginsburg Rule” that nominees should not say anything that might provide a hint, forecast or preview on how they will decide an issue. If the rule is written by Congress, it probably would more closely track current codes of judicial conduct that permit statements of personal opinion on legal, social, and political issues so long as the remark does not constitute a pledge, promise or commitment to rule in a preordained manner.
Drafting a few sample provisions of an ethics code might help further the discussion concerning whether a new code would enhance or detract from public faith in the Court.