The Supreme Court Code of Conduct: A New Rulebook for Those Who Decide the Rules

The current nine U.S. Supreme Court Justices who signed into effect the new code. Source for picture: The Supreme Court

In an unprecedented new decision, the United States Supreme Court agreed on November 13th to adopt a code of conduct regarding ethical decisions and ramifications. While the overall regulations laid out by the code are not exactly new, the fact that they are written down in legal documentation is. This new code comes after strict criticism of the Court’s leniency over engaging in unethical deals, such as accepting lavish vacations from politically inclined billionaires. But what decisive change will this document make? Are the words just a symbolic performance to simmer a brewing opposition?

The code, known as the Code of Conduct for Justices of the Supreme Court of the United States, contains nine pages of written legal code and five additional pages of commentary. Within the code, five canons of conduct outline rules for issues such as when justices should recuse themselves from cases. Acceptance of outside gifts and awareness of external influences are other defining points of the document. The code specifically highlights justice requirements to “uphold the integrity and independence of the judiciary,” along with avoiding “impropriety and the appearance of impropriety in all activities.” 

The topic of ethical conduct in the court is not surprising considering the recent, continuous backlash over perceived bias and outside influence in court decisions. It comes after reports of Justices’ acceptance of luxury gifts and experiences, especially by Justices Clarence Thomas and Samuel Alito. In April of 2023, the court released a statement certifying their persistent upholding of ethical principles, which they “reaffirm and restate.” This code, then, aims to further emphasize the Justices’ assertion of their impartiality through legally reducing opportunities for justice bias. 

While in theory the code offers a solution to these judicial ethical qualms, it has received criticism due to its lack of accountability. One thing that the code specifically does not allow for is a new body to enforce ethical decisions – the Justices are instead left to guide themselves, presenting obvious concerns over individual biases. This has been noted as a weak “honor system” by politicians such as Senator Sheldon Whitehouse, who demanded from the Court a “mechanism to investigate possible violations and enforce the rules.” Since the code allows the justices to disregard restrictions placed against themselves, including recusals, it creates a loophole for unethical behavior. 

In addition to this obvious issue with the code, the rhetoric invoked in the fourteen pages led to scrutiny over how strong the new code is intended to be. In an evident change from the federal recusal statute, the court replaced the word “shall” with “should” when referring to impartiality leading to court disqualification. More decisive language, such as “must”and “may not” were notably less prominent in the code. This change was specifically implemented to emphasize the justices' discretionary authority for each case, regardless of federal statute. When comparing other institutional federal law, it’s apparent that the Justices avoid the typical degree of federal injunction put in place – in the Code of Federal Regulations imposed on every average federal employee, strict ruling prohibits the acceptance of any gift valued at more than $50. This extends to Members of Congress, with mandates forbidding Members or Staff to accept gifts from anyone other than family or personal friends. Thus, the code’s language permits a greater degree of authorization than other federal jurisdictions. 

"The court has emphasized its unique situation in recent arguments against criticisms of the code." Considering that the court only consists of nine justices, the general necessity for each justice in every case has become a principal for the court, making recusals all the more complicated. Furthermore, many Republicans have argued that, due to the 6-3 conservative dominant standing in the court, these ethical concerns have unfairly targeted Republican justices. These statistics, however, do not explain or excuse the extensive reports on bribes creating external pressure on judges in court decisions, especially considering the effects that this partiality has on wealthy political donors and their cases. As previously noted, Justices Thomas and Alito have been particularly notable for accepting gifts valued over $500,000, especially in the form of trips paid by private parties with direct or indirect interest in past Supreme Court cases. These two justices are not an anomaly, however: the late Ruth Bader Ginsberg enjoyed a trip to Israel funded by billionaire Morris Kahn, whose business before the court was decided favorably just years prior, while the late Justice Antonin Scalia took, at minimum, 258 subsidized vacations during his time on the court. The rampancy of these arguably indirect bribes in return for advantageous court rulings is therefore apparent, with no sign of this prominent tactic slowing.  

Considering its recency, how this Supreme Court code of ethics will be invoked in future cases is still uncertain. However, the ethical code of conduct outlined fails to quell concerns over unethical outside relationships between Justices and wealthy individuals of power. Without a true way to regulate and enforce this code, it remains evident that ethical mistreatment may persist in the highest court in the United States. That’s not to say this state of the court will remain in perpetuity; there are proposed solutions for the means of avoidance currently written in the code. For instance, the Supreme Court Ethics, Recusal, and Transparency Act sponsored by Senator Sheldon Whitehouse proposes a random selection of federal appellate judges to proceed over and investigate instances of Supreme Court ethical violations. Other suggestions include appointing retired judges as advisors and substantiators for recusal decisions, as presented by the Brennan Center for Justice. While fundamental regulations were circumvented with the Supreme Court’s recent code, there’s potential for future policy, with only time to tell how ethical conduct will proceed.