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Tuesday, November 14, 2023

SCOTUS Has a Code of Conduct

I have a new essay on Slate about the Supreme Court’s first-ever Code of Conduct. I did not write the mordant headline, which is a bit more aggressive than the article itself, but there are indeed holes in the code.

Here is the gist:

You Could Drive an RV Through the Holes in the Supreme Court’s New Ethics Rules


NOV 14, 2023

The now official Code of Conduct for Supreme Court Justices of the United States is a “good idea,” as Justice Amy Coney Barrett put it a couple of weeks ago, when she knew that it would soon be released but avoided tipping her hand. Critics have rightly pointed out that the code lacks any enforcement mechanism, meaning that ethical compliance will continue to be determined only by the justices themselves—a task at which several of them have been notably lax in the past.

On the other hand, I have argued since 2005 that one important role of a Supreme Court code would be to let “citizens know what they can expect” of the justices. Unfortunately, it turns out that the justices do not expect very much of themselves.

Read together, the code and commentary provide only that the justices will recuse themselves if they feel like it.

Given that the code had evidently been in the works for years—Justice Elena Kagan told a Senate committee in 2019 that it was already being studied—the eventual product is both welcome and frustrating. On the plus side, the Supreme Court finally acceded to public pressure and ended its 50-year run as the only court in the U.S. without written ethics rules. Regrettably, and perhaps predictably, the justices nonetheless passed up the opportunity to reform their deeply unsatisfactory recusal practices, and if anything made them worse.

You can read the entire column on Slate.

Posted by Steve Lubet on November 14, 2023 at 01:58 PM | Permalink


I understand the instinctive desire to have any rule or law have an enforcement mechanism. Indeed, we often ask whether a "mandate" without a "penalty" is even truly a mandate. "Don't park here. Fine will be zero, though."

Despite that, I struggle to find an enforcement mechanism that would satisfy critics and be (1) constitutional, and (2) not be an invitation to abuse for "partisan" or ideological reasons. Let a majority of the Court kick someone off a case? Let the Chief do it? Let some outside body do it?

Many folks already say that some, if not all, of recent criticisms have been driven by dislike for Court decisions. Would that increase or decrease with various enforcement schemes. What if the group kicked Kagan off the Obamacare cases because of questions about her involvement as SG?

Have you somewhere sketched out what a proposed enforcement mechanism would be?

Posted by: nottodayfbi | Nov 15, 2023 2:18:53 PM

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