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.[0] 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.[1]

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.[1] 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.[1]

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.[2]

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.[3] 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.[4]

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.[5]

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.[6] 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.[7]

Separately, ethical questions have arisen surrounding Chief Justice Roberts’ wife, Jane Sullivan Roberts, and her work as a legal recruiter.[8] 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.[8]

0. “American Bar Association Urges Ethics Code for US Supreme Court” Bloomberg Law, 7 Feb. 2023, https://news.bloomberglaw.com/us-law-week/american-bar-association-urges-ethics-code-for-us-supreme-court

1. “Supreme Court justices discussed, but did not agree on code of conduct” The Boston Globe, 9 Feb. 2023, https://www.bostonglobe.com/2023/02/09/nation/supreme-court-justices-discussed-did-not-agree-code-conduct

2. “There's No Code Of Ethics For The Supreme Court, But The Pressure's On” Yahoo News, 10 Feb. 2023, https://news.yahoo.com/theres-no-code-ethics-supreme-153233490.html

3. “FFRF thanks Rep. Hank Johnson for reintroducing Supreme Court ethics bill” Freedom From Religion Foundation, 10 Feb. 2023, https://ffrf.org/news/news-releases/item/41933-ffrf-thanks-rep-hank-johnson-for-reintroducing-supreme-court-ethics-bill

4. “Supreme Court under fresh pressure to adopt code of ethics -” KTEN, 9 Feb. 2023, https://www.kten.com/story/48354186/supreme-court-under-fresh-pressure-to-adopt-code-of-ethics

5. “Calls grow for stronger ethics rules for Supreme Court justices, families” The Hill, 9 Feb. 2023, https://thehill.com/regulation/court-battles/3849720-calls-grow-for-stronger-ethics-rules-for-supreme-court-justices-families/

6. “US Supreme Court Justices Discussed, But Did Not Agree On Code Of Conduct” TheNigerialawyer, 9 Feb. 2023, https://thenigerialawyer.com/us-supreme-court-justices-discussed-but-did-not-agree-on-code-of-conduct/

7. “Supreme Court Justices Reportedly Can’t Figure Out How To Adopt Ethics Code Amid Controversies” Forbes, 9 Feb. 2023, https://www.forbes.com/sites/alisondurkee/2023/02/09/supreme-court-justices-reportedly-cant-figure-out-how-to-adopt-ethics-code-amid-controversies

8. “A new Supreme Court spousal controversy is bringing back up a bad solution” msnNOW, 6 Feb. 2023, https://www.msn.com/en-us/news/opinion/a-new-supreme-court-spousal-controversy-is-bringing-back-up-a-bad-solution/ar-AA179Lob?li=BBnb7Kz