On Monday, the Supreme Court released a unanimously agreed-upon “Code of Conduct” that promotes transparency and clarity.
This release directly responded to mounting outside pressures over the past year. Members of the court, primarily Republican-appointed ones, came under intense investigations regarding gifts and other benefits received throughout their judicial careers. Critics then highlighted that, unlike much of the rest of the federal government, the Supreme Court lacked ethics rules particular to themselves despite being subject to applicable law.
Political partisans will parse the new code to malign justices who do not vote with their policy preferences. That was their intent all along, as opposed to genuine concern for the proper administration of justice. But a thoughtful citizen can and should study these new rules to better understand the judicial role within our constitutional system.
This code affirms the judiciary’s role in upholding the rule of law, a central tenet of our scheme of government. In particular, it gives principles for how the justices should pursue their particular constitutional task of impartial interpretation and application of the law to all who come before them.
The document breaks down the code into five “canons” — general rules or principles guiding the justices’ conduct.
The first canon defines the overall goal of the code: for each justice to “uphold the integrity and independence of the judiciary.” Integrity and independence are the internal and external requirements for the proper functioning of the court. Integrity relates to internal choices in conduct, addressing what actions judges should or should not take to guard the impartial administration of justice. Independence pertains to the external, ensuring that outside forces do not undermine or coopt the judiciary to the detriment of the separation of powers.
Subsequent canons elaborate on these twin goals in more detail. The first point of Canon 2 is the importance of “respect for the law.” This early assertion establishes the baseline that justices should submit to and show reverence for the standard governing their actions. This point also extends to the requirement that justices do not join groups “that [practice] invidious discrimination based on race, sex, religion, or national origin.” This rule affirms that judges must distinguish between persons based on their relationship to the law, not their skin color, religious beliefs, or other characteristics.
Similarly, Canon 5 prohibits justices from engaging in “political activity.” Though justices participate in the political process in the broadest sense, their relationship to our political system is unique. “Federalist 78” famously said they should not exercise will or force but “merely judgment.” By applying the law, they follow the will of the political branches and the people, not their own. Engaging in partisan political activity would create the impression that their votes and opinions are more influenced by their own will than a commitment to uphold existing law.
At the same time, the code encourages justices to participate in civic life through teaching, lecturing and publishing, especially on legal matters. These guidelines reinforce the court’s reputation but also point to the necessity of an educated citizenry and the place justices might fill in achieving that goal. We live in a republic wherein the ultimate human sovereignty resides in the populace. A justice might possess special wisdom, built off particular experience, that might aid their fellow citizens in everyone’s exercise of self-government.
Additionally, the code gives guidelines for the justices’ recusal from cases and acceptance of gifts or other benefits. This point, in particular, has caused the public some consternation.
Again, these rules uphold the supremacy of the law for the judiciary. Justices must recuse themselves when an apparent prior conflict might compromise their ability to judge impartially, not with partiality to persons. This especially includes instances involving family members, close friends, or past colleagues. The code here rightly focuses on general principles rather than specific instances, knowing that it cannot anticipate every issue and that wisdom is needed to navigate each situation appropriately.
Regarding gifts and benefits, the code emphasizes transparency. Again, this rule upholds the centrality of the rule of law and mitigates against even the appearance of partiality. Justice has too often in history been sold to the highest bidder. These rules rightly seek the kind of openness that will make such corruption harder in our system.
Time will tell how well this Code of Conduct works in the public’s view and for justices, present and future. However, we can applaud its principles as affirming the essential role of the rule of law and the impartial administration of justice for our judiciary. In our own time of deep distrust of existing institutions and officeholders, this code is a welcome attempt to restore some lost faith in our Constitution and its system of government.
Adam Carrington is associate professor of politics at Hillsdale College.