ABA Urges Supreme Court to Adopt a Binding Code of Ethics
The American Bar Association (ABA) is calling on the U.S. Supreme Court to adopt a binding code of ethics akin to the code of conduct that the Judicial Conference of the United States has imposed on other federal judges. This call comes amid intensifying national concern over the behavior of the justices, with Justice Elena Kagan testifying in 2019 to a congressional committee that Chief Justice John Roberts was “seriously” studying the issue.
The Judicial Conference of the United States’ code of conduct requires federal judges to disqualify themselves from any proceedings in which their impartiality might reasonably be questioned. However, Chief Justice Roberts has argued that the Supreme Court’s unique constitutional role as the ultimate decision-maker in the nation’s judiciary means it cannot be bound by all of the rules that apply to lower courts.
The ABA said in its statement that the lack of a “clearly articulated, binding code of ethics for the justices of the Court” imperils the legitimacy of the court and its central role in the American judicial system.
Pressure from Congress to adopt a mandatory code of conduct has been building, but it’s not yet clear that it would be legally permissible to impose a code on the Supreme Court, which operates independently from the two political branches of our federal government. Stephen Gillers, a law professor at New York University, said that the justices’ off-bench behavior and their lack of a formal code of ethics have diminished the court’s stature.
The controversy surrounding Justice Clarence Thomas has become a particular focus, following his wife Virginia “Ginni” Thomas’s active role in challenging the outcome of the 2020 presidential election while her husband was considering cases on the subject.
Sen. Chris Murphy (D-Conn.) will be introducing a bill to force the Supreme Court to adopt a code of conduct, but previous attempts have failed. The most recent ethical issues involving the court have been with conservative-leaning justices, making the bill’s success even more unlikely now that Republicans control the House and can block legislation in the Senate.
Separately, ethical questions have arisen surrounding Chief Justice Roberts’ wife, Jane Sullivan Roberts, and her work as a legal recruiter. The concern is that her work could raise a conflict of interest for her husband as she has placed lawyers at firms that have cases before the Supreme Court.
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