The Most Problematic Parts Of The SCOTUS Code of Conduct Are The Last Two Sentences Of The Statement

The Justices err when they publicly respond to public criticism.

On Monday, the Supreme Court released a Code of Conduct. As could be predicted, this document did not satisfy the Court's critics. Almost immediately, the document was torn apart: the Justices used "should" instead of "must"; there is no enforcement mechanism; the recusal rules are too loose; and so on. Personally, I am ambivalent about the Code. I firmly believe that all of the Justices try their level best to maintain the highest standards of ethics, and no parchment barriers will affect those duties. Indeed, that duty must come from within, as reflected by the constitutional and judicial oaths they take.

Still, I found problematic one aspect of the Code–or to be more precise, the preface to the code. The first page of the document is labeled the "Statement of the Court," which presumably was joined by all nine members. (Then again, the Chief Justice sent a letter to Senator Durbin that presumably only he wrote.) The Statement purports to lay out the genesis of the Conduct of Conduct. Pay attention to the last two sentences:

The undersigned Justices are promulgating this Code of Conduct to set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the Members of the Court. For the most part these rules and principles are not new: The Court has long had the equivalent of common law ethics rules, that is, a body of rules derived from a variety of sources, including statutory provisions, the code that applies to other members of the federal judiciary, ethics advisory opinions issued by the Judicial Conference Committee on Codes of Conduct, and historic practice. 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. 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.

Members of the Supreme Court, and all federal judges, have lifetime tenure. The existence of lifetime tenure presupposes that federal judges will be subject to public criticism. And that lifetime tenure is designed to immunize judges from public criticism. If there is a "misunderstanding" of how the Justices behave, it is not the role of the Court to "dispel this misunderstanding." The Court decides "cases" or "controversies," and that's it. Yet, the Court openly states that it is adopting the Code in response to public criticism. I fear we have set a dangerous precedent. Now, and in the future, when Congress lobs criticisms on the Court, and the Court fails to respond, Congress can raise the charge of inconsistency: why did you need to "dispel" misunderstandings about ethics, but not misunderstandings about some other issue. Remember when Chief Justice Roberts responded to some attacks on the Court, but not others? The best policy is to say nothing.

The Court is strongest when it remains independent, not when it submits to the other branches. The Court could have adopted the exact same code, but without the final two sentences of the Statement. Let the process be inward looking, and not external. Do your job, and move on. I'm partial to a famous saying from Queen Elizabeth II: "Never complain, never explain."

Going forward, I suspect any nominee to the Supreme Court will be asked about the statement and the Code during confirmation hearings.