The Supreme Court needs a code of ethics

It is impossible to know what U.S. Supreme Court Justice Neil Gorsuch was thinking when he decided to bar the press from his recent speech to the Florida chapters of the conservative Federalist Society, but it is safe to say that the appearance of political neutrality was not his main objective. The agenda for the convention, held last Friday and Saturday in Orlando, included speeches by former Vice President Mike Pence and Florida Gov. Ron DeSantis, as well a session titled “The End of Roe v. Wade,” an issue that is currently before the Court, and another called “Redistricting in Florida.” Gorsuch has his critics and defenders, but there is no conclusive answer to whether he crossed an ethics line because the Supreme Court has never adopted a code of ethics. 

Every court in the U.S., including the lower federal courts, long ago adopted some version of the American Bar Association’s Model Code of Judicial Conduct. The Supreme Court is the lone holdout. As Chief Justice John Roberts put it in 2011, “the Court has had no reason to adopt the Code of Conduct as its definitive source of ethical guidance” because “every Justice seeks to follow high ethical standards. 

The Chief’s observation is no doubt accurate as far as it goes, but the same good intentions are surely found among lower court judges, all of whom adhere to a written code of conduct. Ensuring probity is not the only purpose of an ethics code; it is also an expression of standards to which the courts hold themselves, thus allowing the public to know what to expect from the judiciary.

For that reason, I recently joined two dozen other legal ethics scholars in an open letter to Roberts, urging him to move forward with the adoption of a code of conduct for the Court. We noted that it has been almost three years since Justice Elena Kagan told a House Appropriations Subcommittee that Roberts was “studying the question of whether to have a Code of Judicial Conduct that’s applicable only to the United States Supreme Court.”

Recruited by the nonpartisan organization Fix the Court, we agreed with Roberts that the Code of Conduct for the lower federal courts does not “adequately answer some of the ethical considerations unique to the Supreme Court” and should not simply be adopted by the Supreme Court, as some members of Congress have attempted to impose through legislation. Instead, we proposed that the Court ought to draft its own code of ethics designed to address issues identified by the justices themselves. 

Many vexing ethics questions have arisen for both liberal and conservative justices over the years, involving anonymous leaks to reporters, participating in industry-funded educational seminars, accepting gifts, praising or criticizing political candidates, charitable fund raising,  commenting on legal issues percolating in the lower courts, sitting in cases where their spouse has announced strong opinions on the underlying controversy and vacationing with a litigant whose case is pending before the Court.

The individual justices have made their own decisions on each of these issues, seldom explaining them. Perhaps they have always gotten it right, or maybe their colleagues would have done things differently. In the absence of a written code, there is no way to distinguish a consensus from an idiosyncrasy. 

There are two provisions of the lower courts’ Code of Conduct that might be adapted to address Gorsuch’s speech to the Florida Federalists. Under Canon 4C, a judge “may not be a speaker, a guest of honor, or featured on the program” of a fund-raising event. The cost of attending the Federalists’ convention was as much as $600. Gorsuch’s banquet speech was prominently featured on the program — as was a pitch for contributions to sponsor the conference.

A lower federal court judge would have been required to ascertain whether the registration fee, plus any sponsors’ contributions, amounted to fundraising beyond the costs of holding the conference. Supreme Court justices currently have no such obligation. I asked the Supreme Court’s public information office if Gorsuch had determined whether the Florida conference was a fundraising event, and whether he was aware of any sponsorship contributions beyond the cost of attendance, but received no reply. 

In addition, Canon 5C states that a judge “should not make speeches for a political organization” – including “a group affiliated with a political party” – or “engage in any other political activity.”

Although the Federalist Society is formally nonpartisan, the Florida convention had a decidedly Republican theme. Photographs of GOP heavyweights Pence and DeSantis were adjacent to Gorsuch’s on the program, and Pence addressed the same audience only a few hours before Gorsuch. 

Most news coverage emphasized Pence’s rejection of former President Trump’s claim that the vice president could have “overturned the election,” but he followed that with a political rallying cry: “Kamala Harris will have no right to overturn the election when we beat them in 2024.” The room remained silent when Pence declared that “President Trump is wrong,” but he drew sustained applause for predicting a Republican electoral victory. 

A justice could still give a politically neutral speech before a starkly partisan crowd. But for reasons never explained, Gorsuch, unlike Pence, delivered his remarks behind closed doors, leaving non-Federalists to wonder if he ventured too deeply into political territory. A Supreme Court ethics code could delineate the circumstances in which a justice may address an overtly political audience, as well as the appropriateness of making secret speeches at all. 

The specific provisions of a Supreme Court ethics code would be up to the justices, whose public approval has been plummeting in recent years. As my colleagues and I wrote in our open letter, “even if primarily aspirational [a code] would have a broad salutary impact, assisting current and future members of the Court to transparently address potential conflicts and other issues in a way that builds public trust in the institution.” Supreme Court ethics should not be a black box.

Steven Lubet is the Williams Memorial Professor at the Northwestern University Pritzker School of Law. His most recent book is “The Trials of Rasmea Odeh: How a Palestinian Guerrilla Gained and Lost U.S. Citizenship.”