The For the People Act of 2021, also known as HR1, which passed the House of Representatives in early March and now awaits Senate action, has been touted as a landmark voting rights measure. It’s also a judicial ethics bill.
Section 7001 of the bill is titled “Supreme Court Ethics.” It consists of a single sentence, instructing the Judicial Conference of the United States to issue a code of conduct to govern the behavior of Supreme Court justices.
The Judicial Conference is a body of 26 federal judges presided over by the Chief Justice.
It might come as a surprise to learn that Supreme Court justices are constrained by no formal set of ethical rules. Federal judges serving at every other level of the judicial hierarchy are bound by the Code of Conduct for United States Judges, but the Code specifically exempts the justices.
The Judicial Conference’s Regulations on Gifts use many roundabout words to say that federal judges should be satisfied with their handsome salaries and lavish perks and decline to accept any gift of value that might be misconstrued as the B-word. The Regulations exempt the justices, too.
In January 1991, members of the Supreme Court issued a resolution, signed by then-Chief Justice William Rehnquist, declaring their intention to comply with the Regulations on Gifts.
But that resolution was issued nine months before Justice Clarence Thomas, currently the longest-serving justice, took his seat. If current members of the court continue to abide by the Regulations (and how would we know if they don’t?), it’s as a matter of personal choice.
Five years ago, the New Mexico Supreme Court censured a well-regarded Santa Fe judge, the late Sarah Singleton, upon finding she had “created the appearance of impropriety by engaging in a phone conversation with plaintiff’s attorney that involved substantive matters and was outside the presence of the other party or the other party’s attorney.”
Saying such “ex parte” communications create an appearance of impropriety is a little like saying shoplifting creates an appearance of larceny. New Mexico’s Code of Judicial Conduct, like its federal counterpart, flatly prohibits all such communications.
And yet, in October 2019, Supreme Court Justices Brett Kavanaugh and Samuel Alito not only met privately with representatives of the National Organization for Marriage, at a time when the group was involved in a case pending before the Supreme Court, but actually posed for a group photo posted to social media.
The case involved LGBT rights. NOM, which opposes gay marriage, was participating as amicus, or friend of the court, and not as a named party. That distinction doesn’t change the ethical calculus. The purpose of the prohibition on ex parte contacts is to protect the rights of the absent party, the one against whom NOM was litigating, and to maintain public confidence in judicial neutrality.
If Kavanaugh and Alito had been serving as lower federal court judges, they would have been subject to the same kind of censure meted out to Judge Singleton.
More recently, Alito gave what veteran Supreme Court reporter Joan Biskupic termed an “ireful” speech to the Federalist Society, the influential conservative legal organization. The intemperance of the justice’s language shocked court watchers. Justices typically hide their personal feelings behind abstract legalese.
Alito left no doubt about his strong views on gun rights, abortion, gay rights and pandemic-related restrictions on religious gatherings, all but announcing how he would rule in future cases.
Harvard Law Professor Noah Feldman, writing in the New York Review of Books, described Alito’s “rousing, ideological” speech as his “apparent bid to compete with (Justice Neil) Gorsuch for leadership of the conservative legal movement.”
I think Alito’s purpose was more straightforward. I think he was encouraging Federalist Society members to bring cases raising those issues to the Supreme Court because, after Amy Coney Barrett’s confirmation, they have an excellent chance of winning.
The Code of Conduct for United States Judges prohibits public comment on matters likely to come before the court. When Supreme Court nominees of either party refuse to answer questions during their confirmation hearings, it’s in reference to that ethical canon. Alito flouted it.
Kavanaugh and Alito did things that would be unethical if done by lesser judges. And yet we can be quite sure that neither man questions his own ethics.
Both are former circuit court judges. Both know the ethical rules. But they also know their current court’s unique powers and responsibilities. They’re telling us they don’t believe that Supreme Court justices have an ethical duty to maintain the appearance of neutrality.
If an ethical code is enacted for the Supreme Court, whose ethics will it embody?
Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at firstname.lastname@example.org.