‘Sotomayor Rule’ exposes the Supreme Court’s porous ethics code

Breaking ranks with most of her colleagues, Justice Ketanji Brown Jackson recently came out in favor of an enforceable code of conduct for the U.S. Supreme Court, to replace the unenforceable code issued by the court late last year. 

In an interview with CBS News, the newest justice said that she doesn’t “have any problem with an enforceable code,” which is “pretty standard” for courts in the U.S. 

She posed the question, “Is the Supreme Court any different?” She concluded that she had “not seen a persuasive reason as to why the court is different than the other courts.”

In November, after years of controversy and facing declining public confidence, the U.S. Supreme Court finally adopted a code of conduct, ending its decades-long run as the only court in the country without written ethics rules. The code of conduct for Supreme Court justices, however, has no provision for enforcement, which makes it advisory at best and impotent at worst.  

It was surely a coincidence that Jackson announced her support for a binding code in a television interview about her new memoir, “Lovely One.” But as always, the devil is in the details, and the inadequacy of the court’s toothless code can be seen in the otherwise mundane matter of book sales. 

Jackson is not the only justice to have written a book. Justices Sonia Sotomayor and Clarence Thomas published best-selling memoirs in past years. Justice Neil Gorsuch recently released a book about what he considers the overreach of the administrative state. Justices Amy Coney Barrett and Brett Kavanaugh currently have manuscripts under contract with major publishers. 

The justices’ reasons for writing are no doubt sincere, but they also have a powerful financial incentive. Federal law places a strict limit on their outside income, but it does not apply to royalties. 

Their advances have ranged from lucrative (about $340,000 for Kavanaugh) to eye-popping ($1.9 million for Sotomayor and about $3 million for Jackson).

And that is only the beginning. Subsequent sales, if a justice is fortunate and popular, can bring in even more money. This explains why releases are accompanied by interview tours like Jackson’s.

Promoting book sales, however, raises ethics issues entirely distinct from that of writing books.  

In July 2023, the Associated Press reported that Sotomayor’s “tax-funded court staff” had been pushing book sales at her speaking engagements. For events at an Oregon public library, Clemson University, the University of Wisconsin and various other venues, Sotomayor’s aides insisted that organizers buy more books than they initially ordered because “people will be upset if they are unable to get in line because the book required is sold out.” 

That would have been flatly unethical for lower court judges, whose “pretty standard” code of conduct, in effect since 1973, prohibits judges from using court staff or resources for commercial or income-earning activities, including book sales. 

At the time, however, the Supreme Court had no code, and thus no rule preventing Sotomayor from profiting from her staff’s efforts. 

When the Supreme Court issued its code of conduct, just a few months after the Associated Press expose, it included an entirely novel provision in Canon 4A, that is found in no other court’s code. The “Sotomayor Rule,” as it might be called, states that “a justice may attend and speak at an event where the justice’s books are available for purchase.”  

But that’s not all. A few paragraphs down the page, Canon 4G greatly expands the rule by authorizing justices to use their staff and chambers to “materially support…activities permitted under these Canons,” which uniquely includes making books “available for purchase.” 

This provision is directly contrary to the lower courts’ code, which expressly prohibits the substantial use of chambers or staff for “extrajudicial activities,” including those otherwise permitted.

Thus, the justices have invented a right to put their staffs to private use — including, by the terms of Canon 4D, the management of investments — which is appropriately denied to all other U.S. judges.

Book promotion is a small matter compared to the major ethics issues that have bedeviled the court in recent years, such as Justices Clarence Thomas’s and Samuel Alito’s improper financial disclosures. The Supreme Court code’s recusal provisions are so porous as to be meaningless. 

On the other hand, the Sotomayor Rule does illustrate exactly why Justice Jackson had the right idea. A self-drafted, self-defined and unenforceable code will almost inevitably include exceptions and escape clauses for the drafters, especially when their financial interests are even slightly at stake.

If the justices exploit the ethical loopholes they have provided for themselves, well, there is nobody who can even nominally stop them.

As long ago as 2005, I argued that even an unenforceable Supreme Court ethics code would at least let “citizens know what they can expect” of the justices. Now we have the answer: Not much.

Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law.