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Monday, May 01, 2023

Dear Justices: A Statement of Principles Is Not a Substitute for a Code of Conduct

My new column for The Hill explains why the Supreme Court's recent "Statement of Ethics Principles and Practices" is no substitute for an actual code of conduct. It leaves many important ethics issues unaddressed, including political activity, solicitation of contributions, avoiding outside influence, ex parte communications and leaking information, public comments on pending cases and reporting misconduct, among others. 

Regarding recusal, the Statement of Principles is simply baffling:

The Statement defends the court’s long-standing practice in which “individual Justices, rather than the Court, decide recusal issues.” The justification is that any other approach “would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate.”

That is wrong for at least two reasons. First, if the majority believes that a justice should be recused, then the justice should not participate no matter how it affects the case. The alternative is to have an otherwise disqualified justice cast the deciding vote, which is obviously far worse.

Moreover, the rationale bizarrely suggests that some future majority might conspire to disqualify another justice simply to control the outcome of a case. Not only does that betray an astonishing mistrust of their successors, but it would be nonsensical for a majority to deviously disqualify a colleague when, by definition, there are already enough votes to prevail in the case.

You can read the entire essay at The Hill.

Posted by Steve Lubet on May 1, 2023 at 11:42 AM | Permalink


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