By Pranita Balusu, FTC law clerk

One of the biggest arguments we hear against an enforceable code of ethics for the Supreme Court is that we already have a method of recourse for ethical transgressions by the justices: impeachment.

In fact, this argument, was recently expressed by former Sens. Jeff Sessions and Jeff Flake at an Open to Debate event at the Hopkins Bloomberg Center in Washington last week (picture at right; video link coming Feb. 7.)

But if impeachment exists as a sword of Damocles over the head of any judge or justice considering their ethical responsibilities, the fact remains it is never used and the justices are still committing ethical lapses?

To evaluate whether impeachment is actually sufficient in dealing with judicial misconduct, let’s consider whether it serves its purpose as both a remedy and a deterrent: 

1. Impeachment is very unlikely to be used by Congress. On a practical level, impeachment is difficult to initiate and carry out. A transgression must be incredibly severe to warrant any impeachment measures being taken, and, especially in a highly polarized Congress, removal from office for judges at any level almost never happens.

2. Impeachment is inappropriate for many ethical lapses. More to the point, removal from office probably shouldn’t happen often. Missed recusals, for example, don’t necessarily warrant something as extreme as impeachment — which, of course, means this kind of misconduct largely goes uncorrected and therefore undeterred. 

So is an enforceable code of ethics more desirable than the current impeachment or nothing? Yes.

1. It could better deal with the kinds of ethical lapses that justices often commit and so could also serve as a much more effective deterrent than impeachment. A formal disciplinary process conducted by neutral arbiters that results in actions such as private censure, public censure or requests for recusal would also be more effective as remedies. 

2. It is less subject to partisan politics than articles of impeachment. A code of enforceable ethics administered by a judicial council, for example, would insulate the justices from partisan attacks by providing an objective set of guidelines the council could follow in determining whether a justice has committed an ethics violation. 

3. It would increase trust in the Supreme Court, which is at historic lows. 

4. Congress thinks enforceable ethics is necessary for lower federal court judges, so why not the justices? Impeachment is not considered sufficient for district and appeals court judges; we have separate complaint processes to investigate and reprimand them. What makes the SCOTUS justices exempt from that same logic?

It’s true that enforceable ethics in the lower courts do not stop every transgression. But the handful of violations that are investigated and are inevitably made public each year do help judges understand their ethical responsibilities and do appear to have a deterring effect.