A Fix the Court-backed measure that would direct Supreme Court justices to create a professional code of conduct akin to existing conduct provisions for their lower court counterparts has been included in H.R. 1, the House Democrats’ ethics-focused first bill of the new Congress.
Supreme Court justices, like judges of U.S. District Courts and U.S. Courts of Appeals, are required to follow the federal recusal statute, 28 U.S.C. 455, which is based on the common law maxim that no one should be a judge in his own case and proscribes participation in cases featuring family members and personal investments.
Beyond that, lower court judges are required to follow the Code of Conduct for U.S. Judges, which forbids political activity and proactively states that judges “should uphold the integrity and independence of the judiciary” and “should avoid impropriety and the appearance of impropriety in all activities.”
Even as detractors have noted that a conduct code would not be fully enforceable at Supreme Court, given there’s no recourse or reprimand for non-compliance save the high bar of impeachment, the thinking that our nation’s top judges should follow tougher ethics rules remains meritorious, with 86% of Americans (80% of independents, 85% of Democrats and 89% of Republicans) in favor of implementing a SCOTUS ethics code, according to a 2018 FTC poll.
“It’s malpractice for Supreme Court justices to be exempt from the federal judiciary’s code of conduct, and they know it,” FTC executive director Gabe Roth said. “This omission is something both Republicans and Democrats alike have recognized in this past Congress as injudicious, and I’m pleased that lawmakers have already introduced a measure in the new session to improve high court ethics rules.”
What’s more, the language on Supreme Court ethics section of the H.R. 1 is the exact same language that unanimously passed the Republican-led House Judiciary Committee last session as a part of the ROOM Act (more below).
Here is a list of the House and Senate bills introduced in the 115th Congress that included Supreme Court ethics provisions:
– Judiciary ROOM Act (H.R. 6755): would require the Judicial Conference to issue a new code for all Article III judges, with a carve out for justices since they’re not fungible; had four co-sponsors (all Republican); passed committee unanimously / no floor action
– Supreme Court Ethics Act (H.R. 1960): would require the justices to write their own code of conduct that includes the Code of Conduct for U.S. Judges; had 96 co-sponsors (all Democrats); no hearing / no vote
– Anti-Corruption and Public Integrity Act (H.R. 7140); would require that the Code of Conduct for U.S. Judges, which lower court judges follow, be applicable to Supreme Court justices; had 10 co-sponsors (all Democrats); was introduced earlier this month
– Supreme Court Ethics Act (S. 835): would require the justices to write their own code of conduct that includes the Code of Conduct for U.S. Judges; had 16 co-sponsors (all Democrats); no hearing / no vote
– Anti-Corruption and Public Integrity Act (S. 3357); would require that the Code of Conduct for U.S. Judges, which lower court judges follow, be applicable to Supreme Court justices; had one sponsor, Sen. Warren; no hearing / no vote