Legal Ethics Bonus Content No. 5 - SCOTUS Adopts Ethics Code - My Top Three Concerns (11.13.23)
Breaking news - the U.S. Supreme Court *finally* adopts an (unenforceable) ethics code for itself
Welcome to your fifth installment of bonus content from the Legal Ethics Roundup!
In addition to the (FREE!) weekly roundup every Monday morning, I regularly post bonus content for paid subscribers. This material offers a deeper-dive into issues touched upon in the weekly roundup and sometimes covers breaking news that can’t wait until Monday, like this post!
For today’s breaking news, however, there is no bonus content paywall. This is a super-short overview of what you need to know right now. Please share it widely with others.
Today, the Supreme Court issued the following statement along with a fourteen page Code of Conduct for Justices of the Supreme Court of the United States.
You can read the full Code here.
Here’s a survey of quick takes from X/Twitter, all clearly underwhelmed by the Court’s gesture:
As for my quick take? Here are my top three concerns:
Enforcement. There is no enforcement mechanism for litigants whose cases might be impacted when justices should disqualify themselves under the Code but fail to do so, and there is no enforcement mechanism for the justices to hold each other accountable.
Transparency, Consistency, Accountability. The Supreme Court lacks a transparent, consistent record of precedent on past disqualification decisions to help hold current and future members accountable.
Best Practices Review. The Commentary to the Code states: “To assist the Justices in complying with these Canons, the Chief Justice has directed Court officers to undertake an examination of best practices, drawing in part on the experience of other federal and state courts.” There are numerous well-studied proposals for reform already in existence, but the Court has ignored them. Why? See, for example, work from the bipartisan U.S. Supreme Court Working Group of the American Academy of Arts & Sciences and the Academy’s report from the Commission on the Practice of Democratic Citizenship. Another reform I’ve covered here at the Roundup comes from Richard Painter (Minnesota), who has proposed a Supreme Court ethics lawyer and inspector general. Re-visit Roundup No. 4 for more on that.
As regular readers of the Legal Ethics Roundup know, I expressed cautious optimism that the Supreme Court would, indeed, adopt a Code of Ethics this term. It’s something I’ve called for in testimony before Congress and written about extensively here. Today marks a small step forward. As I told New York Times Reporter Adam Liptak when he called to ask my thoughts, much work remains.
I'll be back Monday with another Legal Ethics Roundup. Until then, thanks for reading! I hope you have a great rest of the week.