Supreme Court in an Ethical Soup

Sure, we all have ethical challenges, but the U.S. Supreme Court is stewing in the ethical soup, and no one knows what to do about it. Chief Justice John Roberts must be beside himself to prevent leaks (think Roe v Wade on abortion). The Chief Justice described the leak as “absolutely appalling” damage to the Court. Whoever leaked the document had violated “an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court.” Alas, the downward ethical spiral of the Court is reflected in the latest Gallup poll—58 percent of the public disapproves of the way the Supreme Court is handling its job while a bare 40 percent approve. When asked about how much trust and confidence you have in the judicial branch headed by the U.S. Supreme Court, 22 percent of those polled said “none at all” while 7 percent said a “great deal.”

Oh, you might ask—aren’t U.S. Justices vetted carefully during the nomination process to ensure that all are brimming with integrity and committed to the rule of law? Well, maybe/maybe not. After all, the purpose of the vetting process from the nominee’s perspective is to get a prestigious, life-time job and not tip your hand over issues such as abortion rights or transgender behavior. So can’t justices that do not demonstrate “good Behaviour,” as the U.S. Constitution prescribes, be impeached and removed from office. Yes. Has a justice ever been impeached and removed? Only one Supreme Court justice – Samuel Chase in 1804 – has ever been impeached, but he was not found guilty by the Senate and not removed.  The associate justice was charged with “arbitrary and oppressive conduct of trials” with allegations that political bias impacted his rulings.

Political bias among U.S. Justices? Consider the brewing controversy that Justice Clarence Thomas should recuse himself from all cases forthcoming from the January 6^th insurrection in which his wife, Ginny Thomas, was an active political participant. Justice Thomas says that he and his wife do not share pillow talk about the insurrection or any other issue before the Court. And, if you believe that, you must surely believe that the London Bridge is still in London!

So, what this history points to is that a U.S. Supreme Court Justice must exercise his/her private ethical judgement to ensure “good behavior.” But wait a minute—isn’t there a code of ethics to guide a justice? No. Unlike all other federal judges and office holders, elected or appointed, who must answer to a code of ethics, Supreme Court Justices do not.

Code of Conduct for Judicial Employees — approved by the Judicial Conference of the United States.
This Code of Conduct applies to all employees of the judicial branch, including interns, externs, and other volunteer court employees, except it does not apply to Justices; judges; and employees of the United States Supreme Court, the Administrative Office of the United States Courts, the Federal Judicial Center, the Sentencing Commission, and federal public defender offices.

There are five Canons (rules of reason):
Canon 1: A Judicial Employee Should Uphold the Integrity and Independence of the Judiciary and of the Judicial Employee’s Office
Canon 2: A Judicial Employee Should Avoid Impropriety and the Appearance of Impropriety in All Activities
Canon 3: A Judicial Employee Should Adhere to Appropriate Standards in Performing the Duties of the Office
Canon 4: In Engaging in Outside Activities, a Judicial Employee Should Avoid the Risk of Conflict with Official Duties, Should Avoid the Appearance of Impropriety, and Should Comply with Disclosure Requirements
Canon 5: A Judicial Employee Should Refrain from Inappropriate Political Activity — A judicial employee should refrain from partisan political activity; should not act as a leader or hold any office in a partisan political organization; should not make speeches for or publicly endorse or oppose a partisan political organization or candidate; should not solicit funds for or contribute to a partisan political organization, candidate, or event; should not become a candidate for partisan political office; and should not otherwise actively engage in partisan political activities.

Why should U.S. Supreme Court Justices be excused from the oversight and guidance of an institutionalized code of ethics or judicial canons? Well, the answer is in two parts. First, as a co-equal branch of the federal government, neither the Congress nor the President can impose a code that justices must follow. Second, why should anyone believe that an impartial collection of black-robed judges would be ethically suspect? A private set of ethical standards is thought sufficient for such an esteemed body, although not everyone thinks so. The Roe leak is especially troublesome given the reaction of Justice Thomas who claimed the leak was indeed a betrayal of trust and then went on to blame (without naming) justices who joined the Court since 2005. The blame game didn’t stop here. He further attacked progressives for “trashing” nominees and cultivating a culture critical of “politicization” in the selection of justices. Do you mean justices are political and can take sides? Oh, how naive!

The U.S. Supreme Court is not only in the ethical soup because of failing to embrace the rule of law and tolerate disagreeable political behavior by a spouse, but also the Court does not want to police itself with a code of ethics. The Court also fails the test of transparency involving recusal decisions. A justice, if he/she so wishes, is not required to explain why he/she did or did not decide to recuse her/himself.

Isn’t the U.S. Supreme Court drowning in the ethical soup? Or, as is often the case, if you are in a hole and want to get out, stop digging!

Donald C. Menzel, Ph.D. is a past president of the American Society for Public Administration, author and international speaker on ethics reform. Before his move to Colorado, Don organized OLLI-USF’s China Special Interest Group. He also served as an OLLI-USF faculty member for over 10 years.