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Justice Kennedy: Binding Ethics Rules Would Lead to More 4-4 Ties at High Court

When Justice Anthony Kennedy was asked during a House Appropriations Subcommittee hearing in 2013 whether the Code of Conduct for U.S. Judges should apply to the nine justices of the Supreme Court, he gave a bit of an odd answer.

First, he said that rules concerning the judicial ethics should emanate not from Congress but from the Judicial Conference, a body of federal judges that makes policy for the judiciary. But then he went on to say he wasn’t sure whether the circuit court judges who sit on the Conference could make rules that were “binding” on their superiors at the high court.

In addition, Justice Kennedy said he was concerned that stricter ethical guidelines would lead to more recusals, meaning more 4-4 decisions, and, as Kennedy said, “everybody’s time is wasted,” since a 4-4 Supreme Court tally means that a case didn’t need to be heard as the lower court’s ruling would stand.

But if, as Kennedy says, the justices have these unarticulated reasons to recuse themselves more frequently, shouldn’t they recuse themselves more frequently?

It’s a circular argument and one we believe would be settled should ethics rules be binding on the justices.

Fix the Court is calling on Chief Justice Roberts and his colleagues to formally adopt the code of ethics – called the Code of Conduct for United States Judges – that all other federal judges are required to follow. Should they demur, we believe Congress has the authority to compel the justices to adopt the code.

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