FTC has several suggestions for a version 2.0

Fix the Court is endorsing the Model Code of Conduct for U.S. Supreme Court Justices released today by Project On Government Oversight and Lawyers Defending American Democracy that, if adopted, would set reasonable expectations for the justices’ conduct on and off the bench and bring them in line with judges across the country in having a formal document to refer to when faced with tough ethical questions.

That the POGO-LDAD code draws quite heavily from the existing lower courts’ code is a wise move, as its principles of impartiality, independence and refraining from political activity — all meant to improve public trust in the federal courts — apply equally, if not more so, to the high Court.

That said, the model code includes several critical, SCOTUS-specific additions that would make recusal rules for the nine more exacting and would constrain participation in fundraising activities and in events hosted by organizations “generally perceived to be partisan or ideologically oriented.” (More on these below.)

Though recent reporting suggests that the justices have actively been discussing whether to adopt a formal code, no draft text has been put forward, and it appears there remain divisions within the Court over whether a code is even needed. The justices in recent years have bristled at the mere suggestion of adopting one, maintaining that they already consult various ethics codes and treatises, that their non-fungibility makes drafting too difficult and that their unique constitutional role makes punishment for violations impossible — all of which might lead one (or nine) to the conclusion that such a project should not be undertaken. FTC is pleased POGO and LDAD have not followed that pronouncement.

“There is self-evident value in adopting a uniform set of principles the justices can look to for ethical guidance and the public can look to for understanding how the justices are expected to act on and off the bench,” said FTC’s Gabe Roth. “If the justices are serious about adopting a formal code of conduct, they should use the POGO-LDAD draft as a starting point. If they’re not serious about adopting one, I believe we’re at the point where Congress should start playing hardball and should, for example, take a serious look at whether the justices need upwards of $127 million in discretionary spending in the coming year, as they requested this morning.”

Looking at the institution, not individuals. Every justice has committed multiple ethical lapses over the past few years. Certain justices’ lapses, though, have received more public attention, and whether that’s warranted or not (probably is), the model code does not really home in on, or blow out, any single indiscretion. Instead it focuses on general principles that, if followed, would raise the level of ethical compliance both for the justices as individuals and for the institution as a whole.

No more FedSoc and ACS keynotes. Nearly all of the current justices have headlined events hosted by the country’s two most prominent partisan legal organizations, the Federalist Society and the American Constitution Society. Though not spelled out explicitly, the prohibition in 4A(1) against “speaking to any organization […] generally perceived to be partisan or ideologically oriented” would accomplish that. Seeing as how, beyond the obvious perception problem, neither organization has made a real effort in recent years to invite federal judges from the “other side” to their major events, FTC is fine with this.

Duty to sit vs. reasons not to. Yes, justices are not replaceable, and a merits case recusal could render the Supreme Court less than supreme, with a 4-4 tie meaning lower court judges would set the law. But this concern does not account for the damage done to the public standing of the Court when a justice participates despite a fairly obvious conflict, a point that the model code attacks head on, stating in Canon 3C(2), “A Justice shall not participate in a proceeding when the Justice’s impartiality might reasonably be questioned […] regardless of the impact of the disqualification on the functioning of the Court.”

Expanding the recusal guidance. The model code expands the recusal guidance found in the lower courts’ code and in 28 U.S.C. §455 by recommending recusal when a party has donated to a justice’s confirmation or when a party has, during the preceding six years, given a justice or their close family income or a gift (and “gift” here also means free trips). FTC ensured these very provisions were included in the Supreme Court Ethics Recusal and Transparency Act that was reintroduced last month and is pleased to see them replicated here.

New transparency measures. The most interesting part of the model code might be Canon 6, a completely new section vis-a-vis the lower courts’ code that focuses on ways the justices can increase transparency at their notoriously opaque institution. This canon offers four examples: providing additional reasoning for opinions and concurrences, avoiding deciding matters before a complete record is available, improving access to the Court’s public proceedings and refraining from giving speeches in private settings where the contents remain confidential. These provisions would improve public confidence in the operations of the Court and in the integrity of its members.

Other provisions FTC would like to see in a SCOTUS code:

When it comes to transparency and consistency at the Court, one of the frustrations for advocates, not to mention journalists and historians, is the inconsistent nature with which the justices handle their papers. In a future draft of the model code, FTC would like to see inclusion in Canon 6 of a line exhorting the justices to initiate a plan to donate a segregable, non-private portion of their papers to the Library of Congress or institution of higher learning within a reasonable amount of time after their tenure on the Court has ended.

Another suggestion for a future draft: in 4C, making the fundraising section more explicit. In other words, the justices (or their staffs) should take the proactive step to inquire whether the host of an event they’re appearing at is requiring payment from members of the public to attend. If such fees would net a profit, then a justice must decline participation. FTC would also like to see a requirement that justices update their lists of financial and other conflicts, often called a “recusal list” or “conflicts sheet,” twice per year, as recently amended Judicial Conference guidelines state.

Finally, FTC was disappointed with the inclusion of blind trusts in Canon 4D(3). The Judicial Conference currently prohibits blind trusts in the judiciary (see p. 46), and so does (many people’s understanding of) a federal law, 28 U.S.C. §455(c), making the inclusion ill-advised.