The Code of Conduct adopted by the Supreme Court in November is hardly worth the paper it’s printed on.

By stating that the Code’s “rules and principles are not new,” the text excuses the justices’ past indiscretions, implying the litany of lapses that occurred prior to adoption were permissible.

The language of the Code is often weaker than federal law and the lower courts’ code in key places (c.f., “may” instead of “shall”).

And it includes no enforcement mechanism, no way to file a complaint against a justice for alleged misconduct and no way for discipline to be meted out should a justice be in violation of its canons.

But that’s not the end of the story.

The justices realize that the lack of enforcement is an oversight.

As Justice Kagan said in July, “I think the thing that can be criticized [about the Code] is rules usually have enforcement mechanisms attached to them, and this set of rules does not.”

And there’s no good reason not to fix this. “A binding code of ethics is pretty standard for judges,” Justice Jackson said last month, “and so I guess the question is, ‘is the Supreme Court any different?’ And I guess I have not seen a persuasive reason as to why the Court is different than the other courts.”

How would this look in practice?

One possibility comes from Kagan: “A committee of highly respected judges with a great deal of experience, with a reputation for fairness” could serve as a judicial council, i.e., the body that would investigate alleged misconduct.

Fix the Court endorses this approach.

What a judicial council does is already fairly clear in federal law (though we’d prefer the new council to solely comprise senior judges). Importantly, prior to reaching the council, there would need to be a way to dismiss unsupported complaints, which Kagan has envisioned, as well — “to sort the wheat from the chaff,” as she said on Sept. 9.

Lower-court judges reviewing the justices’ ethics practices is already occurring, as federal law gives the Judicial Conference the authority to evaluate the justices’ financial disclosures for compliance, with noncompliance resulting in a referral to the Justice Department and the possibility of civil or criminal penalties.

Below are the four interviews in the last two months (two Kagan, two Jackson) where enforceable ethics were mentioned:

Justice Kagan at the Ninth Circuit Conference on July 25, 2024, per C-SPAN video:

“I think the thing that can be criticized is rules usually have enforcement mechanisms attached to them, and this set of rules does not. And I think this is a super hard question, honestly. I think the enforcers should be judges. I can’t think of other people who should enforce a code of conduct against judges, and I think it would be bad for us to do it to each other — in other words, for the same judges sitting at the table trying to decide cases to be the one saying, you broke that rule or did not break that rule.

“So then what does that leave? It leaves judges lower down the food chain, and that creates perplexities. It’s usually the case that people who enforce rules are not — we review all of your decisions and then you’d review our decisions, and that is not usually the case.

“So it does create complications and real questions, and it is a hard thing to do to figure out who exactly should be doing this and what kind of sanctions would be appropriate for violations of the rules. But I feel that however hard it is, that we could and should try to figure out some mechanism for doing this.

“I have a lot of trust and faith in the Chief Justice. If the Chief Justice appointed some sort of committee of highly respected judges with a great deal of experience, with a reputation for fairness, that seems like a good solution to me.

“It would benefit us in various kinds of ways because it would provide a safe harbor. Sometimes people accuse us of misconduct where we haven’t engaged in misconduct. So I think both in terms of enforcing the rules against people who violated them but also protecting those who have not violated them, I think a system like that would make sense.”

Justice Jackson in an interview with CBS News, taped in late Aug. 2024:

“I follow the rules, whatever they are with respect to ethical obligations, and it’s important, in my view, to do so. It really boils down to impartiality—that’s what the rules are about. People are entitled to know if you’re accepting gifts as a judge, so that they can evaluate whether or not your opinions are impartial. […]

“So, you know, a binding code of ethics is pretty standard for judges, and so I guess the question is, ‘is the Supreme Court any different?’ And I guess I have not seen a persuasive reason as to why the Court is different than the other courts. […]

“I am considering supporting [an enforcement mechanism] as a general matter. I’m not going to get into commenting on particular policy proposals, but from my perspective, I don’t have any problem with an enforceable code.”

Justice Jackson in an NPR interview, taped Aug, 28, 2024:

“The court has recently adopted ethics rules that are similar to the rules that lower courts have had for some time, if not since their founding. I was a lower court judge and I operated under ethics rules. I’m personally glad that the court has now adopted a code of ethics. […]

“The guidelines have been adopted. The justices have committed to following them. I think the question is whether there’s something about the Supreme Court that would make it different than the binding ethics rules that exist in the lower courts. At least up to this point, I haven’t seen any good reason why there shouldn’t be binding rules.”

Justice Kagan at NYU on Sept. 9, 2024, per NBC News:

“Justice Elena Kagan outlined Monday how the Supreme Court’s new ethics code could be improved if it had an enforcement mechanism, rejecting claims that the idea she has proposed would be ineffective. […]

“‘It seems like a good idea in terms of ensuring that we comply with our own code of conduct going forward in the future. It seems like a good idea in terms of ensuring that people have confidence that we’re doing exactly that,’ she said.

“On the first point, Kagan noted in her remarks Monday that many accusations already made against the justices are often left unresolved. The panel of judges could ‘sort the wheat from the chaff’ by quickly dismissing frivolous allegations, she said.

‘I mean, there’s, like, lots of ability now to make unfounded charges about what justices do and don’t do. So I don’t really see how it would increase that,’ she said.

Kagan appeared unconcerned that the lower court judges would pull their punches, saying the judges ‘are not so afraid of us’ as people might think.

‘And I think that there are plenty of judges around this country who could do a task like that in a very fair-minded and serious way,’ she added.”

A view from the 1970s

In the era after Watergate, Sen. Sam Nunn of Georgia introduced a bill on several occasions called the Judicial Tenure Act that went so far as to define what constituted “good behaviour” under Article III, so that a panel of federal judges could themselves remove one of their colleagues without going through an impeachment process.

This bill even made it to the Senate floor where it passed, 43-31.

Among the “ayes”: Sens. Joe Biden, John Danforth, Barry Goldwater, Orrin Hatch, Jesse Helms, Pat Leahy and Strom Thurmond.

None of the enforceable ethics bills introduced in this Congress — we list them here and expect another one based on Justice Kagan’s views to come out soon — would go so far, which makes opposition to them all the more ridiculous.