The U.S. Supreme Court’s new Code of Conduct could have gone a long way in restoring public confidence in the nation’s highest court. Unfortunately, the justices failed to include a means of ensuring that the rules are followed.
The Code of Conduct lacks any real enforcement mechanism and stands in stark contrast to the New Jersey Code of Judicial Conduct. The state’s robust ethics rules mandate strict compliance with Seven Canons of Judicial Conduct and allow for both private and public disciplinary action, including the ability to suspend or remove a judge for misconduct.
SCOTUS Code of Conduct
On November 13, 2023, the United States Supreme Court published a long-awaited Code of Conduct for Justices of the Supreme Court of the United States, signed by all of the current justices. In a Statement of the Court accompanying the Code of Conduct, the justices stated that its rules are not new, but rather formalize the Court’s longstanding ethics rules and principles.
The high Court also acknowledged the criticism it has faced regarding its apparent lack of formalized rules. “The absence of a Code, however, has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules,” the Court wrote. “To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct.”
In a commentary accompanying the Code of Conduct, the U. S. Supreme Court further explained that its ethics rules are substantially derived from the Code of Conduct for U.S. Judges but are “adapted to the unique institutional setting of the Supreme Court.” For instance, significant changes to the recusal procedures are required given the inability of other justices to fill in when recusal is required and the slim margins by which cases are often decided.
In terms of enforcement, the Code appears to rely on the “honor system,” as it does not includes a mechanism to investigate or punish alleged violations. In its commentary, the only reference to enforcement is a quote by former Justice Tom C. Clark, who observed that “judges ‘must bear the primary responsibility for requiring [appropriate] judicial behavior.’”
The commentary also notes that Chief Justice John Roberts has directed Court officers to undertake an examination of best practices, drawing in part on the experience of other federal and state courts. It says that the Justices will continue to seek guidance from the Office of Legal Counsel and the staff of the relevant Judicial Conference committees with regard to financial disclosures.
The Supreme Court’s new ethics rules are groundbreaking only because they establish a clear standard against which the justices’ conduct can be measured. Traditionalists argue that the rules and the public pressure that will result when they are violated may be enough to discourage bad behavior. However, according to many court reform advocates, the lack of teeth render the code meaningless and will likely just result in a continuation of the status quo.
New Jersey’s Code of Judicial Conduct
If the United States Supreme Court wanted to establish comprehensive and enforceable ethics rules, New Jersey is an excellent model. The New Jersey Code of Judicial Conduct, last revised in 2016, mandates that judges avoid both impropriety and the appearance of impropriety.
With regard to recusals, judges must disqualify themselves if the “judge has a social relationship with a party or a lawyer for a party of a nature that would give rise to partiality or the appearance of partiality.”
Unlike the United States Supreme Court’s rules, New Jersey’s Code of Conduct prohibits judges from accepting any payment for permitted quasi-judicial and extrajudicial activities, with the exception of reimbursement of reasonable expenses “provided that the source or amount of such reimbursement, or the location of the activity, does not give the appearance of influencing the judge in the exercise of judicial duties or otherwise create an appearance of impropriety.”
The New Jersey Code of Conduct also strictly regulates gifts. It states that judges and family members residing in the same household may not accept a gift unless “the donor is not a party or other person whose interests have come or are likely to come before the judge.”
Should a judge act improperly, a complaint may be made to the New Jersey Supreme Court’s Advisory Committee on Judicial Conduct (ACJC). The committee, composed of private citizens who are appointed by the Supreme Court, reviews allegations of judicial misconduct. If the ACJC investigates a complaint and believes that the judge has violated the Judicial Code of Conduct, it may choose to discipline the judge privately.
Complaints against NJ judges are confidential unless and until the ACJC files formal charges against a judge. Thereafter, formal complaints, answers to formal complaints, and all further actions taken by the committee are public. Depending on the ACJC’s findings and upon its own review of a complaint, the New Jersey Supreme Court may publicly sanction a judge. Sanctions range from reprimand, censure, and suspension without pay, to removal from judicial office.
Key Takeaway
The U.S. Supreme Court seems to understand that it has a public image problem, and its Code of Conduct is arguably a good first step. Unfortunately, without a mechanism for investigating allegations of misconduct and holding justices accountable, it will likely do little, if anything, to restore the public’s confidence in the Court.