WASHINGTON — As calls for the Supreme Court to adopt an ethics code mount, the justices continue to wrestle with whether to adopt a policy similar to one that applies to all other federal judges.
The possibility of a code of judicial conduct for Supreme Court justices remains a subject of study and consideration at the court, a person familiar with the matter said.
Leaders of the American Bar Association this week added their voices to a chorus of others urging the justices to adopt an ethics code. “The absence of a clearly articulated, binding code of ethics for the justices of the court imperils the legitimacy of the court,” a report accompanying the bar association’s resolution said.
The report said the resolution had not been prompted by “any particular conduct by any one or more current or former members of the court.”
“Still,” it said, “events of recent years, especially including the Jan. 6, 2021, insurrection, vividly remind us that the legitimacy of our nation’s key institutions lies at the foundation of our democratic and republican way of life.”
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Virginia Thomas, the wife of Justice Clarence Thomas, worked to overturn the 2020 presidential election in the weeks leading up to the attack on the Capitol. Justice Thomas’s failure to recuse himself from related cases drew sharp criticism from experts in legal ethics.
At a 2019 budget hearing before a House committee, Justice Elena Kagan said that Chief Justice John G. Roberts Jr. “is studying the question of whether to have a code of judicial conduct that’s applicable only to the United States Supreme Court.”
“That’s something that we have not discussed as a conference yet,” she said, referring to the justices’ private meetings. “And that has pros and cons, I’m sure. But it’s something that is being thought very seriously about.”
In his year-end report on the state of the federal judiciary in 2011, Chief Justice Roberts seemed to try to fend off critics who said Supreme Court justices should be constrained by the Code of Conduct for United States Judges, which applies to other federal judges.
He walked a fine line.
“All members of the court do in fact consult the code of conduct in assessing their ethical obligations,” he wrote, adding: “Every justice seeks to follow high ethical standards, and the Judicial Conference’s code of conduct provides a current and uniform source of guidance designed with specific reference to the needs and obligations of the federal judiciary.”
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But he said the Supreme Court was not bound by the code. “The court has had no reason to adopt the code of conduct as its definitive source of ethical guidance,” he wrote.
Unlike the code of conduct, which does not apply to the justices, all federal judges are subject to a federal law on recusal. The law says that “any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
In his 2011 report, Chief Justice Roberts indicated that the law may violate the Constitution’s separation of powers or, as he put it, “the limits of Congress’s power to require recusal have never been tested.”
Enforcing rules on when justices must disqualify themselves could prove difficult, he wrote.
“The Supreme Court does not sit in judgment of one of its own members’ decision whether to recuse in the course of deciding a case,” he wrote. “Indeed, if the Supreme Court reviewed those decisions, it would create an undesirable situation in which the court could affect the outcome of a case by selecting who among its members may participate.”