The Volokh Conspiracy
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The Supreme Court's Statement of Ethics Principles and Practices
Earlier, I blogged about Chief Justice Roberts's letter to Senator Durbin. That letter bore only the Chief's signature, so we do not know if his eight colleagues concurred. (I suspect that Justice Thomas would have dissented from the shoddy historical analysis). Here, I'll turn to the attached "Statement on Ethics Principles and Practices." This 2.5 page document was signed by all 9 of the justices.
The document is significant simply because it exists: all 9 justices were able to come to a consensus on a statement of ethics in a fairly short time. (I was curious why the Court didn't release opinions on a Tuesday when oral arguments were scheduled; now I suspect the Court was putting the finishing touches on this statement). But, if ever the price of the unanimity, the letter doesn't say very much of use.
What did we learn? The statement reiterates a fact that is lost in every single news story about judicial ethics:
The canons themselves are broadly worded principles that inform ethical conduct and practices. But they are not themselves rules. They are far too general to be used in that manner.
Even if the Supreme Court adopted an ethics code, those canons would be no more "binding" than the current canons are "binding" on lower-court judges. These are not bright-line rules that would suddenly make all of the ethics professors happy. The justices would still have to follow their own consciences.
The statement provided that the "Judicial Conference, which binds lower courts, does not supervise the Supreme Court." This sentence is true, as a technical matter. But the joint statement did not go as far as Chief Justice Roberts, who insisted that Congress could not regulate the ethics of the Supreme Court.
According to the statement, the Justices can "seek advice from the Court's Legal Office and from their colleagues." But there is another path for advice. We learn that the Judicial Conference's Committee on Financial Disclosure reviews the disclosures by the Supreme Court justices. And that Committee "either finds them to be in compliance with applicable laws and regulations or sends a letter of inquiry if additional information is needed to make that determination." Plus, "the Committee provides guidance on the sometimes complex reporting requirements." Justice Thomas explained that he consulted with his "colleagues" regarding the disclosures for his trips with Harlan Crow. We do not know if those colleagues included the Financial Disclosure Committee.
The statement explained that at least since 1991, the justices have "adopted a resolution to follow the substance of the Judicial Conference Regulations." The word "substance" demonstrates why the Supreme Court could not wholesale adopt the entire Code of Conduct. Specifically, the recusal rules for the nine-member Court differs from the recusal rules for the lower courts:
In regard to recusal, the Justices follow the same general principles and statutory standards as other federal judges, but the application of those principles can differ due to the unique institutional setting of the Court. In some instances the Justices' recusal standards are more restrictive than those in the lower court Code or the statute—for example, concluding that recusal is appropriate where family members served as lead counsel below. A recusal consideration uniquely present for Justices is the impairment of a full court in the event that one or more members withdraws from a case. Lower courts can freely substitute one district or circuit judge for another. The Supreme Court consists of nine Members who always sit together. Thus, Justices have a duty to sit that precludes withdrawal from a case as a matter of convenience or simply to avoid controversy.
The statement maintains that each Justice must make his or her own recusal decisions. That task cannot be delegated to another member of the Court.
Individual Justices, rather than the Court, decide recusal issues. If the full Court or any subset of the Court were to review the recusal decisions of individual Justices, it would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate.
In related news, Senators King and Murkowksi introduced the Supreme Court Code of Conduct Act. That bill would designate a court employee to make recommendations concerning recusals, and other ethical issues. Presumably, the Justices would see this intrusion as intolerable. Probably a violation of the non-delegation doctrine, or something.
The statement demonstrates that parties would have a strategic interest in forcing a Justice to recuse--another reason the usual rules from the lower court would be difficult to apply.
In some cases, public disclosure of the basis for recusal would be ill-advised. Examples include circumstances that might encourage strategic behavior by lawyers who may seek to prompt recusals in future cases. Where these concerns are not present, a Justice may provide a summary explanation of a recusal decision . . .
The appendix offers some additional thoughts on the federal recusal statute:
Federal Recusal Statute. 28 U.S.C. § 455 provides recusal standards for "justice[s] [and] judge[s] . . . of the United States." The Chief Justice has stated that "the limits of Congress's power to require recusal have never been tested. The Justices follow the same general principles as other federal judges, but the application of those principles can differ due to the unique circumstances of the Supreme Court." C.J. Roberts 2011 Year-End Rpt. at 7. First, there is no higher court to review the Justices' recusal decisions. Second, because recused Justices cannot be replaced, a Justice cannot withdraw from a case as a matter of convenience or simply to avoid controversy. In 1993, a Statement of Recusal Policy addressed recusal issues where members of a Justice's family were practicing attorneys. See Statement of Recusal Policy (Nov. 1, 1993).
The statement also seems to greenlight speaking in front of the Federalist Society:
Except in unusual circumstances, no such appearance will be created when a Justice speaks before a group associated with an educational institution, a bar group, or a nonprofit group that does not regularly engage in advocacy or lobbying about issues that may be implicated in cases that come before the Court.
Finally, the statement explains that there are limits on outside income from teaching, but not on writing books:
Justices may not have outside earned income—including income from teaching—in excess of an annual cap established by statute and regulation. In calendar year 2023, that cap works out to less than 12 percent of a Justice's pay. Compensation for writing a book is not subject to the cap.
The emphasized statement is not quite right. Rather, the code of conduct does not place limits on royalties. And publishers routinely grant Supreme Court Justices advances on their royalties in a lump sum, long before the book is even published--or even written. Of course, if the book doesn't sell enough copies, the Justices would have to repay those royalties. But Justices are able to sell books on demand, simply by showing up at an event. I started writing an article on the ethics behind this royalties loophole, but I never finished it. This sentence from the Justices--several of whom received prodigious advances--makes me want to finish that article.
