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A defense of Justices’ ethics

Reacting to critics of the Supreme Court who have raised their voices lately about the Justices’ ethical values, Chief Justice John G. Roberts, Jr., used his year-end report on Saturday to seek to reassure the nation that he and his eight colleagues are sensitive to the issue, and are entitled to the public’s confidence in their integrity.   He did, however, resist mildly the notion — advanced by some critics — that Congress should take further steps to compel the Justices either to create their own binding ethical code, or accept as binding the one that lower federal court judges must obey.  The report (with data about the workload of the federal judiciary attached as an appendix) is here.

Customarily, the Chief Justice’s annual assessment of the state of the judiciary is focused on less controversial issues, and seldom on a single topic.  This year, though, Roberts turned the entire main body of his report to the question: “Where do federal judges look for guidance in resolving ethical issues?”  What follows was a detailed description of a wide array of sources of such guidance, and a survey of the practices that he and his fellow Justices follow.  He included a mostly general discussion of how and when he and his colleagues opt to disqualify themselves from taking part in a given case before the Court.

Lately, the Court’s ethical practices have become a hotter topic, especially among advocacy groups as well as some critical members of Congress, with much of the more recent discussion in political circles about whether Justices Elena Kagan and Clarence Thomas should recuse themselves from any role when the Court rules this Term on the constitutionality of the new federal health care law.   Each of those Justices’ participation has been assailed by outsiders on the argument that they have conflicts of interest, and thus should step aside.  Neither has given any indication that he or she will do so.

The recusal suggestions have come against a background of apparently widening demands that the Justices need to be subjected to a binding code of ethics, since they now regard as voluntary their adherence — which the Chief Justice insisted was quite faithful — to an existing federal statute on disqualification, and a judicial conduct code, both put into effect to bind judges on the lower federal courts.

The Chief Justice did not concede that he was responding to the criticism or the suggestions that the Justices do things differently, and he made no direct mention of the challenges to Justices Kagan and Thomas.   The Chief Justice began his report with a recounting of the history of the development of a code of ethics for federal judges (first emerging in 1924 in response, Roberts said, to the cheating scandal in the 1919 World Series, which had led to the appointment of a sitting federal judge as baseball commissioner to “restore confidence in the sport”).

Roberts then moved on to a discussion of the Justices’ ethical practices, noting that the existing formal code of conduct for federal judges does, indeed, apply only to lower court judges.   The reason for the difference, the Chief Justice said, is that lower court judges can be replaced on a case if they are disqualified, but the Supreme Court has to do without one of its nine members if there is a recusal, since the Constitution specifies that there is to be only one Supreme Court.

Moreover, Roberts commented, the policymaking arm of the federal courts (the U.S. Judicial Conference) was set up to manage the lower federal court, so it has “no mandate to prescribe rules or standards for any other body” — impliedly, the Supreme Court.   Even though the Conference’s code is not binding on the Justices, the Chief Justice said, he and his colleagues consult those restrictions for their own guidance, along with other sources of advice on ethical conduct for judges.  With access to a wide variety of such advice, Roberts said, the Justices have “no reason to adopt the code of conduct as” their “definitive source of ethical guidance.”

He also noted that the Justices follow the same financial disclosure requirements, and the limits on taking gifts, that apply to lower court judges.  The Justices in 1991 formally adopted a resolution, he noted, to follow those guidelines.

In discussing both those requirements and the question of judges’ recusal, Roberts made an explicit point of saying that “the limits of Congress’s power” to impose such restrictions on the Justices have not been tested.   He made it clear, though, that whether that power exists is a constitutional one, and is thus one for the Court itself ultimately to decide.   That perhaps might be taken as a suggestion to members of Congress who have been talking about directing the Justices to follow a binding ethical code that they would not have the last word on that subject.

The Chief Justice’s discussion of the recusal issue followed the standard lines of argument that members of the Court have applied when the actual issue of disqualification has arisen — either by a motion to disqualify, or by the Justices’ own consideration of that possibility.  He made clear that the choice about disqualifying is one for the individual Justices to make, without the other Justices sitting “in judgment of one of its own members’ decision whether to recuse in the course of deciding a case.”  Again, as other Justices have done, he invoked the doctrine of the “duty to sit” as a special obligation of Supreme Court Justices because they cannot be replaced temporarily, as a recusing lower court judge can.

“A Justice,” Roberts said, “cannot withdraw from a case as a matter of convenience or simply to avoid controversy.  Rather, each Justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.”  He expressed “complete confidence in the capability of my colleagues to determine when recusal is warranted.”

And he closed the main body of his report by arguing that “at the end of the day, no compilation of ethical rules can guarantee integrity.   Judges must exercise both constant vigilance and good judgment to fulfill the obligations they have all taken since the beginning of the Republic.”


Recommended Citation: Lyle Denniston, A defense of Justices’ ethics, SCOTUSblog (Dec. 31, 2011, 6:01 PM),