March 20, 2023, 4:50 AM

‘New Era’ of Scrutiny Brings Calls for Supreme Court Ethics Code

  • Court silent but said to be considering policy 
  • Public approval hovers near all-time low

Chief Justice John Marshall attended dinner parties hosted by President John Adams. Justice William Douglas played poker with President Franklin Roosevelt. And Justice Byron White went on ski trips with Attorney General Robert Kennedy.

None of those relationships seemed to sound alarms. Now, even attending a private Christmas party can raise suspicions about a Supreme Court justice’s ability to remain impartial on the bench.

Several high-profile incidents in the last 10 months—involving both the justices and their spouses—have reignited long-standing calls for the Supreme Court to institute a code of conduct like the one that governs all other federal judges.

Last month, the American Bar Association passed a resolution urging the justices to adopt an ethics code and two Democrats in Congress introduced a bill (S. 325, H.R. 927) that would force them to do so.

For their part, the nation’s nine most powerful judges have hinted that they are considering such a code, though the court has publicly said nothing on the topic for years. What’s different now is that public sentiment has shifted more starkly than ever against the court.

A Marquette University poll in January found 53% of adults disapprove of the way the Supreme Court is handling its job. That’s better than the 61% who disapproved in July—weeks after the court’s historic decision to upend the national law protecting abortion—though multiple surveys suggest public opinion still hovers at an all-time low.

Some complain the criticism of the justices is just sour grapes after a series of lightning-rod decisions from a bench packed with conservatives. But the pipeline to the high court remains loaded with blockbuster cases—the kind likely to stir more public attention on the decisions and greater scrutiny on the decision-makers.

“We’re in a new era,” said Ellen Yaroshefsky, a legal ethics scholar at Hofstra University.

Ethics Code For Some

Since the 1970s, judges in federal district, appellate, and bankruptcy courts have been guided by a code of conduct. It’s not intended to be a strict set of rules that address every ethical dilemma, but instead meant to provide guidance.

Many of the restrictions “are necessarily cast in general terms, and judges may reasonably differ in their interpretation,” the official commentary to the code explains.

For example, it says a judge can participate in extrajudicial activities like speeches, charitable activities, and fundraising. “However,” the code cautions, “a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth below.”

Such catch-all provisions can be open to interpretation.
Jeremy Fogel spent 30 years as a judge in northern California, first in state court and then on the federal bench. He was also a youth soccer coach.

Because some of his players’ parents were attorneys, Fogel had a personal policy of recusing if any of their cases came before him.

“It wasn’t like we were intimate friends or anything like that,” Fogel said. “I just felt like, why should I even raise a question about it?”

He kept a list of those lawyers so his clerk could reassign cases in which they were identified as counsel of record. Fogel never saw which cases were reassigned, so he doesn’t know how many were given to another judge, but he guesses at least a few. He stopped coaching right around the time he was nominated for the district court in 1997. 

Fogel admits he was maybe being too careful, but thought recusal was the safest route to take.

The standard in both the state and the federal codes of conduct require judges to avoid the appearance of impropriety, which includes “permitting others to convey the impression that they are in a special position to influence the judge.” 

“I was concerned that a reasonable observer might think that the lawyers whose sons were on my team would been in such a position,” he said. 

Violating the federal code can be the basis for disciplining a judge, although such cases are few and far between. Critics blame a process they say is secretive, overseen by other judges, and typically resolved behind closed doors.

Data from the Administrative Office of the US Courts show that 75 percent of the 1,520 complaints filed against federal judges between Oct. 1, 2021 and Sept. 30, 2022 were dismissed. Most were dismissed at the outset, either because they lacked substantive evidence or because they were about a judge’s ruling, not conduct, according to the AO’s numbers.

Only a handful were concluded without dismissal, according to the data, which identifies the reason but does not name the judge. 

In three, the judge agreed to “voluntary corrective action,” which often means an acknowledgment of wrongdoing and sometimes an apology. Nine ended due to an “intervening event,” usually resignation. Three were referred to a “special committee” for further investigation.

Just one resulted in a public reprimand, for a South Carolina District Court judge named Joseph Dawson. In that case, Dawson, a longtime county attorney, was chided for failing to disclose during his 2020 confirmation proceedings that his previous employer—Charleston County—had agreed to pay him at least $216,000 after he joined the bench for his “institutional and historical knowledge and insight” and “non-legal advice.”

“Although we find no wrongful intent or pattern of improper activity on the part of Judge Dawson, we agree with the Special Committee that the misconduct in this case was serious,” the Fourth Circuit Judicial Council said. “This public concern requires a public response.”

Dawson apologized but remains on the bench.

When Diane Wood was chief judge of the US Court of Appeals for the Seventh Circuit, her job included administering the rules of judicial conduct and fielding ethics complaints against federal judges across Illinois, Indiana, and Wisconsin.

“A lot of the complaints that come in are completely without merit because they essentially take the form of ‘I‘m angry that the district court judge ruled against me. There must have been some kind of misconduct,’” Wood, now a senior judge, told Bloomberg Law.

There were only a handful of cases serious enough that Wood assembled a committee to look into the allegations. Occasionally there were complaints about sexual harassment, a judge improperly participating in the political process, or being too friendly with the litigating parties, she said.

In one, a member of Congress and the heads of two public interest groups complained in 2013 that a judge had been featured on the program of a $200-a-head dinner hosted by the Federalist Society, the conservative group that advocates for a stricter interpretation of the Constitution.

The circuit court’s Judicial Council looked into it, but ultimately dismissed the complaint. In a written opinion, Wood said the dinner in question was not a fundraiser, so the ban on judges appearing as the speaker or featured participant in fundraisers didn’t apply.

The basic rule is “you, the judge, cannot be the advertising lure to come to the event,” she said.

But the same disciplinary system doesn’t apply to Supreme Court justices.

Hot Water 

All of the justices except Elena Kagan spent time as federal judges subject to the code of conduct, though their time in the lower courts varies.

Justice Clarence Thomas served on the powerful US Court of Appeals for the D.C. Circuit just over a year and a half before being elevated to the high court. Chief Justice John Roberts sat on the same court for just over two years. In contrast, Justice Sonia Sotomayor was a judge for 17 years in New York, first as a district judge then on the Second Circuit. Justice Samuel Alito sat on the Third Circuit for nearly 16 years.

Members of the Supreme Court regularly speak at events hosted by groups that align with their ideologies. Justices from the court’s liberal wing, including Sotomayor, have appeared before the progressive American Constitution Society, while members of the court’s conservative wing have spoken at Federalist Society events.

There’s no way to determine when a personal relationship or appearance at an event should spark concern about a justice’s ability to impartially preside over a case. Still, just their appearance at such gatherings can have an impact, said University of Houston Law Center professor Renee Knake Jefferson.

“It matters both in terms of the public’s perception and belief in the rule of law and really the foundation of justice,” she said. “It also matters for the particular litigants whose case is going to be decided.”

Such concerns have been compounded by a wave of reports in recent months about the private conduct of justices, primarily those in the right-leaning majority.

Thomas’ potential to be impartial in election-related disputes came under fire after the House panel investigating the Jan. 6 attack on the Capitol revealed that his wife, Ginni Thomas, had sent text messages urging then-White House Chief of Staff Mark Meadows to aggressively challenge the 2020 election results.

Alito came under scrutiny late last year when evangelical minister Rob Schenck alleged the 72-year-old jurist had told friends at a 2014 dinner party how the justices planned to rule in a controversial case involving religious freedoms.

Justice Brett Kavanaugh stirred headlines in December amid reports he attended a Christmas party that was hosted by the leader of the Conservative Political Action Coalition and whose attendees included a representative from a legal foundation with matters before the high court.

Members of the court’s liberal wing have also found themselves in the throes of controversy in past terms.

Justice Ruth Bader Ginsburg ignored calls to recuse herself from cases involving President Donald Trump after she called then-candidate Trump “a faker.”

“He says whatever comes into his head at the moment. He really has an ego,” Ginsburg said in a 2016 CNN interview. She later walked back the comments, saying they were “ill-advised.”

Kagan rebuffed recusal calls during the challenges to the Affordable Care Act, President Barack Obama’s signature health-care legislation. Though she was the federal government’s top lawyer at the Supreme Court when the law was passed in March 2010, and sat in on at least one meeting where potential litigation against the law was discussed, she nevertheless heard the case when it came up to the justices in 2012.

Critics have cited those examples as reasons the court needs a transparent code of conduct. But such scrutiny has also been supercharged by an unprecedented act that to this day hasn’t been traced back to anyone: the unauthorized leak in May of a draft decision, written by Alito, overturning Roe. v. Wade.

Smear Campaign

As the talk about a Supreme Court ethics code gets louder, the justices have not rushed to join the conversation.

Many observers have to point to 2011 to explain Roberts’ stance on the idea. In his annual report on the judiciary that year, the chief justice noted the justices already consult the lower courts’ judicial code of conduct and “a wide variety of other authorities to resolve specific ethical issues.”

“For that reason, the [Supreme] Court has had no reason to adopt the Code of Conduct as its definitive source of ethical guidance,” he wrote.

In a 2019 House hearing, Alito said the justices “are committed to behaving in an ethical manner and in a manner that appears to the public” to be fully ethical. At the same hearing, Kagan said a Supreme Court specific code was being “very seriously” considered.

Despite recent reports the justices are again “actively” considering one, no code has been proposed or implemented. A court spokesperson declined to comment for this story.

Thomas Jipping, a senior legal fellow at the Heritage Foundation’s Center for Legal and Judicial Studies, said liberals are deliberately trying to create the perception that the court, which Trump filled with its largest conservative contingent in decades, has become just another partisan political branch of government.

“There’s an agenda going on here,” he said. “They don’t like their decisions so they want to paint them as corrupt or unethical, or political, partisan, whatever.”

Jipping doesn’t think the justices are doing anything out of the ordinary and said the recent criticisms against them are just part of a smear campaign.

“There’s no reason to question someone’s impartiality because they had dinner with somebody,” he said.

Whether the perception is fair or not, Fogel said judges should want to communicate to the public that they’re not like members of Congress.

“When a justice goes to a politically charged event and is a featured speaker, whether they are a liberal justice or a conservative justice, that feeds the narrative,” said Fogel, who was appointed to the bench by President Bill Clinton. “It makes it seem like we just have to count votes.”

Unlike elected officials, judges can’t be influenced by contributors or lobbyists, or what rich friends they have, he said, so “it’s important the court strike a different tone.”

But there is concern that criticisms about where and with whom the justices are seen could push them to be more isolated than they already are. Even the ethics code for the lower courts emphasizes judges shouldn’t go too far with their restrictions.

“Complete separation of a judge from extrajudicial activities is neither possible nor wise,” extra guidance to the code says. A “judge should not become isolated from the society in which the judge lives.”

It’s still an open question whether Congress, or anyone, has the power to force the justices to follow an ethics code. The Constitution gives Congress authority over lower federal courts, but sets up the Supreme Court as an independent branch of government, one with far-reaching influence.

Rulings this term alone could eliminate the use of race as a factor in college admission decisions and wipe out President Joe Biden’s plan to cancel student loan debt for 40 million Americans. 

Stephen Gillers, an emeritus professor at New York University School of Law and scholar in legal ethics, said the justices don’t have to become hermits, but they should be cautious “given the enormous power they have and the willingness of the public, fairly or not, to be suspicious of relationships that could imply an improper motive.”

“Maybe, I think, now is a time to be extra, extra careful,” he said.