Mending a Broken Ethics Culture: The Promise and Pitfalls of the Supreme Court's Code of Conduct

Abstract

The Judicial Conference of the United States has done an admirable job of embedding its code of conduct into the culture of the federal courts and creating an ethical climate within the federal judiciary. The ethics culture on the Supreme Court, in contrast, is quite different, as reflected in the recent litany of ethical problems the Justices have encountered, the Court's longstanding hostility to proposals for it to adopt a code, and the defensive tone of the new code itself. Legal scholarship analogizing judges to priests in a faith-based constitutional order underscores the need for judges to be true believers in the rule of law and their role as impartial adjudicators, reified by codes of conduct that serve as rules of the rectory. Institutional psychology research tells us that for codes of conduct to serve their purpose, judges subject to their terms must take steps to internalize and take ownership of their codes, which the lower federal courts have done, but which the Supreme Court has not. The net effect is that the lower federal courts revere their code as a source of guidance and inspiration, while the Supreme Court has drafted a diluted code that accompanying commentary construes defensively, to barricade itself from criticism. If the SCOTUS Code is to promote a more ethical climate on the Court and break the cycle of ethics imbroglios, the Court must do more to internalize its new Code, as the lower courts have theirs. And the Justices must interpret their Code generously, to the end of abiding by its letter and spirit, rather than parsimoniously, to circumvent violations and deflect blame.