Code of conduct for SCOTUS: It’s a start, but quite inadequate

Well, the United States Supreme Court final­ly came out with a Code of Conduct for itself.

The 14-page doc­u­ment was released on November 13, 2023, most like­ly as a response to increas­ing calls in the halls of Congress for such a code, in light of recent rev­e­la­tions about poten­tial con­flicts of inter­est among some of the justices.

Immediately after release, some mem­bers of Congress and the press began pok­ing holes in it.

I have read the doc­u­ment. It is divid­ed into “Canons.” I guess “canons” sounds a bit more judi­cial than would “sec­tions” or “arti­cles.” The canons are bro­ken down into sub­sec­tions and sub-sub­sec­tions and not much dif­fer­ent than any state­ment of bylaws would be, just couched in judi­cial-like lan­guage to make it appear more eso­teric than it real­ly is.

But that’s real­ly all about com­po­si­tion and has noth­ing to do with content.

The most imme­di­ate­ly notice­able thing about the con­tent is that each canon begins with “A Justice Should Uphold” or “A Justice Should Avoid” or “A Justice Should Perform” or “A Justice Should Refrain.”

Based on a very per­func­to­ry study of legalese it would seem far more appro­pri­ate for each can­non to begin with “A Justice shall” or “A jus­tice must.”

Then the writ­ers (the doc­u­ment was most like­ly writ­ten by some of the court under­lings but is signed by all nine jus­tices so one assumes they sub­scribe to its con­tents) put a thumb on the scale by stat­ing (Canon 3.B(1)) “A Justice is pre­sumed impar­tial and has an oblig­a­tion to sit unless dis­qual­i­fied.” Presumed by whom? Disqualified by whom? In fact, the very next para­graph goes on to stip­u­late when a Justice should dis­qual­i­fy him­self or her­self but gives no clue as to how any­one else might dis­qual­i­fy a justice.

Another thumb is added to the scale in 3.B(3): “The rule of neces­si­ty may over­ride the rule of dis­qual­i­fi­ca­tion.”  This lit­tle tid­bit appears to be pro­mul­gat­ed on the issue of hav­ing a jus­tice recuse him­self or her­self, leav­ing only eight jus­tices sit­ting and result­ing in what is described in the Commentary attached to the Code as “the fruit­ful inter­change of minds which is indis­pens­able” [quo­ta­tion marks in orig­i­nal].

Canon 4 deals with “extra­ju­di­cial activ­i­ties” of jus­tices.  4.A(e) is espe­cial­ly notable in deal­ing with the “appear­ance of impro­pri­ety.” It states: “Except in unusu­al cir­cum­stances [unde­fined], no such appear­ance will be cre­at­ed when a Justice speaks to a group of stu­dents or any oth­er group asso­ci­at­ed with an edu­ca­tion­al insti­tu­tion, a bar group, a reli­gious group, or a non-par­ti­san schol­ar­ly or cul­tur­al group.”  This seems a bit spu­ri­ous con­sid­er­ing that a good many reli­gious groups are con­stant­ly lit­i­gat­ing issues which often end up before the Supreme Court.

Canon 4.A(5) allows a Justice to “…give legal advice to and draft or review doc­u­ments for a mem­ber of the Justice’s fam­i­ly.”  In read­ing that I couldn’t help but won­der if it wasn’t writ­ten specif­i­cal­ly for Justice Thomas, who is prob­a­bly deal­ing with issues of his wife and her activ­i­ties with the Republican par­ty and involve­ment in attempts of for­mer President Trump to stay in office.

Canon 4.E states: “In decid­ing whether to speak before any group, a Justice should con­sid­er whether doing so would cre­ate an appear­ance of impro­pri­ety in the minds of rea­son­able mem­bers of the pub­lic.”  Like so many legal doc­u­ments this admo­ni­tion con­tains the very fruits of its own undo­ing by indi­cat­ing “rea­son­able”, a dubi­ous term in any cir­cum­stances, but def­i­nite­ly one that would have lit­tle legal sup­port because of the dif­fi­cul­ty of defin­ing exact­ly what “rea­son­able” real­ly is.

All-in-all this Code of Conduct may be a good start.  But then again, jump­ing off a cliff is a good start on get­ting down from the moun­tain.  It’s sort of tan­ta­mount to an indi­vid­ual decid­ing for him­self or her­self how he or she will con­duct their lives with­out any input from the rules and morals of a well-func­tion­ing society.

The only real way to rein in the excess­es of this most pow­er­ful seg­ment of our tri­par­tite sys­tem of gov­ern­ment is to adopt these rules and oth­ers, but to make adher­ence to those rules more emphat­ic, with defin­i­tive meth­ods of assur­ing adher­ence to them.  That appears to be the major short­com­ing of this doc­u­ment, in that it offers no rec­om­pense for vio­la­tions, nor does it define who shall have the pow­er of enforce­ment.  It seems to be all voluntary.

In the final analy­sis, what is need­ed is not only adop­tion of a Code of Conduct for the Court but a 28^th Amendment that sets def­i­nite term lim­its for Justices as well as min­i­mum and max­i­mum ages for Justices to serve.