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Wednesday, September 27, 2023

Is John Roberts Actually Right about the Need for a SCOTUS Ethics Code?

My new essay on Slate explains why I have regretfully begun to reconsider the value of a Supreme Court ethics code, although only because I fear that the justices who need it most would be the least likely to follow it. The headline (which I did not write) is ironic.

Here is the gist:

It Turns Out John Roberts Was Right About Supreme Court Ethics Rules

In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts took it upon himself to explain that the Supreme Court, unlike every other court in the U.S., had “no reason to adopt the Code of Conduct as its definitive source of ethical guidance.” I disagreed strongly at the time, as have many observers ever since, who have demanded that the court adopt a set of written ethics rules. But I am beginning to have my doubts. It may turn out that Roberts was right, although not for his stated reason that his colleagues are “jurists of exceptional integrity and [unquestioned] character and fitness.”

The real reason to stop hoping for a Supreme Court code of ethics is that it would probably have no meaningful effect on the justices who need it most. They would simply ignore or evade it, just as they have disregarded existing ethics legislation.

Justice Elena Kagan recently joined the call for a Supreme Court code of conduct, telling an audience at Notre Dame Law School that it would “go far in persuading other people that we were adhering to the highest standards of conduct.” I fear that comes too late. Justice Samuel Alito has already declared that he does not recognize the authority of federal ethics laws, never even acknowledging the federal courts’ Code of Conduct, while Thomas simply ignores them.

You can read the entire piece on Slate.

Posted by Steve Lubet on September 27, 2023 at 02:48 PM | Permalink


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