Supreme Court Justices Offer Unconvincing Dodge on Ethics

My new essay at The American Prospect, explains why former federal appeals judge Michael Luttig is right, and the SCOTUS justices’ Statement of Ethics Principles is wrong, when it comes to Congress’s power to set conduct rules for the Supreme Court.

Here is the gist:

Supreme Court Justices Offer Unconvincing Dodge on Ethics

by Steven Lubet

May 4, 2023

“There should never come a day,” Luttig added, when Congress “is obligated to enact laws prescribing the ethical standards” applicable to the Court. But Congress “indisputably has the power under the Constitution to do so,” he concluded.

In contrast, Roberts and his colleagues were all but dismissive of increasing public concerns, allowing only that they would “reaffirm and restate foundational ethics principles,” while seeking “to dispel some common misconceptions.”

Reassuringly, the justices seem to say that their recusal decisions nonetheless follow the Judicial Conference’s Code of Conduct:

A justice may provide a summary explanation of a recusal decision, e.g., ‘Justice X took no part in the consideration or decision of this position. See Code of Conduct 3C(1)(c) (financial interest)’ or ‘Justice Y took no part in the consideration or decision of this petition. See Code of Conduct, Canon 3C(1)(e ) (prior government employment).'

In fact, no such explanations have ever been given.

Moreover, just six days after issuing the Statement of Principles, and one day before the Senate hearing, the Court announced Justice Ketanji Brown Jackson’s recusal in a major case with no parenthetical explanation, much less a citation to the Code of Conduct.

Several Republican senators—including Thom Tillis (R-NC) and Charles Grassley (R-IA)—briefly suggested that they might eventually be open to some congressional oversight of the Court. If so, it will be because they have accepted Judge Luttig’s admonition that the subject of the Supreme Court’s “ethical standards of conduct … is emphatically not a partisan political issue.” As he put it, the Court has a “continuing obligation to assess itself,” and every justice has a responsibility to ensure that questions about their ethical conduct need not even be raised.

You can read the entire piece at The American Prospect.