The Ethics of the Supreme Court
In response to criticisms of certain rulings, perceived as linked to the behavior of certain justices, the Supreme Court adopted a “code of conduct” consisting of aspirational rules in November 2023. The code’s five canons are modeled after the code for all federal judges except Supreme Court judges.
They state that every justice should:
1. Uphold integrity and independence.
2. Avoid impropriety and the appearance of impropriety.
3. Perform official duties fairly, impartially and diligently.
4. Be able to engage in extrajudicial activities consistent with obligations of the office.
5. Refrain from political activity.
There is no enforcement mechanism for the aspirational code of conduct.
The Supreme Court’s 6-3 conservative majority in this time of political polarization has clouded the perception of independence of the court and made it difficult to reason out ethical inquiries. The question, then, is whether there is a practical way to hold the Supreme Court justices accountable for perceived unethical behavior.
The question: Should there be a code of conduct that holds the Supreme Court justices accountable?
Gordon Haist argued in favor, saying:
Adhering to a code would give purpose and direction to the court.
Adherence would enable the court to operate independently of the ideological orientation of its members.
The supreme authority of the Supreme Court requires enforcement to maintain its independence.
In cases of violation of the code, enforcement mechanisms against the justices are needed.
Therefore, the Supreme Court should have a code of ethics that holds its justices accountable.
Audience members were eager to jump into the topic. One pointed out that the recently adopted code used the word “should” where it probably should have used the word “must.” Another described the new code as a model for “lack of clarity.” Someone decried the lack in the U.S. Constitution of a designated arbitrator of disputes about justices’ conduct. Someone else suggested that the justices’ lifetime appointments complicate any kind of enforcement that might be devised.
Paul Weismantel argued against trying to enforce a code of ethical conduct on the Supreme Court, saying:
The court’s job is to interpret the Constitution as it affects cases coming to it.
It relies mainly on originalism and textualism as methods.
Originalism and textualism are based on facts, not values.
Interpretation of facts should be should not be based on values or ethics, but on facts only.
Since a code of ethics binds interpretation to values, a code of ethics is inappropriate for the Supreme Court.
“There is no practical way,” he said, “to hold the Supreme Court accountable for what some consider nonethical conduct. I hate it, but that’s it.”
Audience members continued to enter the fray eagerly. One called impeachment by Congress the only mechanism possible for enforcement of ethics violations. Another pointed that some nominees for the Supreme Court had in the past misled the Senate Judicial Committee; by calling the Roe V. Wade decision “settled law,” they indicated, although they did not say, they would let it stand. Beware of what might happen next, one member said, despite the fact that the Constitution says nothing about the abortion pill.
Someone in the audience suggested a need for a Constitutional Convention to improve the nation’s governing document. Someone else suggested that those participating could very well create a document far worse than the current one. One audience member asked rhetorically, “How do we get better candidates for public office?”
Paul pointed out that the Supreme Court overruled the state of Colorado’s attempt to exclude Donald Trump from the ballot on the basis of the Constitution’s 14th Amendment prohibiting insurrectionists from holding federal offices. It was a practical ruling based on fear that allowing some states to opt out of a national election for president would cause chaos. The judgement created new law that runs against the conservative philosophy, indicating the court’s majority approach as more transactional than principled.
He said also that while the Constitution requires the government to stay out of churches it doesn’t require the churches to stay out of government.
Gordon repeated his position that enforcement of ethical conduct is important for the credibility of the justices.
Paul repeated his position that as risky as the current situation is, since the court’s job is to interpret facts as the Constitution applies to them, there is no practical way to enforce a code of ethics. The only tool available is congressional impeachment.