Public confidence in the judiciary calls for a code of ethics that governs the judicial and extrajudicial conduct of U.S. Supreme Court justices.
Based on a 2022 National College of Justice survey, judicial ethics experts who agreed with 97% of surveyed judges and urged Chief Justice John Roberts to adopt the High Court Code of Conduct in 2022 is also the same.
Proponents convincingly argue that there is no reason to exempt Supreme Court judges from the ethical restrictions imposed on all other federal judges. If a judicial code of conduct is necessary to maintain public trust in the judiciary, shouldn’t it also be necessary to maintain public trust in the country’s nine most powerful judges?
Unfortunately, such Supreme Court Code of Conduct requirements lack specificity. More detailed information is desperately needed to answer thorny questions such as whether the enactment of a code is accompanied by an enforcement process, or whether the ethics clause merely serves as an aspirational guideline for judges. increase.
Indeed, several obstacles prevent the creation of enforcement devices. At its most fundamental question, who has the power to investigate and prosecute judges for misconduct? requires significant resources and structure.
State of investigation
Practically speaking, investigators face a large backlog of allegations against current and former judges. One advocacy group has identified possible lapses in his 65 cases committed by her 13 judges between 2014 and his April 2022. Since then, judicial ethics complaints have been on the rise, with accusations of leaking confidential information, inappropriate outside influence, and inappropriate holiday-his party attendance.
To further complicate matters, some investigations can involve complex legal issues and constitutional quagmire. For example, Judge Elena Kagan was asked to decline a lawsuit challenging the Affordable Care Act, but it was denied because she advised the Obama administration on the bill as Attorney General.
Investigating this alleged misconduct would require subpoenaing an Affordable Care Act memorandum and emails between the Attorney General and the White House. And issues raised by refusing to produce such documents asserting officer privilege or attorney-client privilege will ultimately be brought to the Supreme Court.
For those codes and investigative procedures that actually build public confidence in justice, some protection must be built into the system to guard against abuse of the process for purely partisan purposes.
This can be problematic because Democrats routinely file complaints against Republican nominees, and Republicans have retaliated by habitually filing complaints against Democratic nominees.
It is no coincidence that conservative groups complained about Kagan’s participation in the Affordable Care Act lawsuit. It’s also no coincidence that 74 House Democrats have asked Judge Clarence his Thomas to drop the health care lawsuit on the grounds that his wife is lobbying against the law.
meaning of the rules
Besides the lack of specificity as to whether the new Code is ambitious or enforceable, little is provided as to what the rules themselves say. May be identical to the code governing lower court judges. Alternatively, the High Court may be sufficiently original in structure and purpose to support the modified limits.
Many scholars believe that the lower court model, with some modifications, will serve the Supreme Court well. It is not stated what those changes are. Without concrete suggestions, there is nothing to consider or discuss.
A sensible discussion of the Code for Judges requires specific suggestions that explain the limitations imposed and the nature of the investigation or enforcement process.
need a committee
To make money, we need an independent commission to draft a code of conduct for Supreme Court justices. In other words, code proponents should put their keyboards where their mouths are. The court can then consider, fine-tune, and adopt or reject the committee’s proposal.
The procedures of this independent commission show exactly how the Code of Judicial Ethics for State Court Judges and Lower Federal Court Judges was born. Over the years, the American Bar Association has convened a panel of experts to prepare and periodically review a model code of judicial conduct.
And there is no shortage of potential members for the Supreme Court Code Drafting Committee. Even if the court rejects the commission’s proposed code outright and refuses to adopt its own revision, at least the public will know where the court stands.
Most code advocates suggest that members of the court draft their own codes of conduct. It may be because lawyers are reluctant to step on judges’ feet. But there has been no action by the court since Kagan advised Congress in 2019 that the chief justice of the Supreme Court was considering the matter. It can help avoid codes of conduct that involve reporting minorities and minorities.
If the time has come for a judicial code of conduct for judges, it is also time for experts to draft and defend detailed proposals.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., publishers of Bloomberg Law and Bloomberg Tax, or their owners.
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Raymond J. McCosky A retired Illinois judge and adjunct professor at the University of Illinois Chicago Law School. His book, Judges in Street Clothing: Acting Ethically Off-the-Bench, examines the ethical limits on judges’ extrajudicial activities.