Could a Code of Ethics Fix the Supreme Court's Problems?
The Supreme Court is in crisis mode. The recent controversies involving its members, from sexual harassment allegations to partisan bias claims, have eroded public trust and jeopardized the Court's legitimacy as an impartial arbiter of law. Many concerned citizens and lawmakers are calling for reforms that could prevent or punish ethical lapses by the justices. One proposed solution is to establish a Code of Ethics that would clarify the standards of conduct expected of Supreme Court justices and provide a framework for evaluating complaints or violations. But is a Code of Ethics a viable or effective option?
The idea of creating a Code of Ethics for the Supreme Court is not new or radical. The Court already has a Code of Conduct for United States Judges that applies to all federal judges, including the nine justices. However, the Code of Conduct is not binding on the Supreme Court, which operates under its own internal rules and customs. Some critics argue that this loophole undermines the integrity of the judiciary and leaves the public vulnerable to abuses of power or influence. They contend that a separate Code of Ethics for the Supreme Court, tailored to its unique role and responsibilities, would promote transparency, accountability, and public confidence.
Proponents of a Code of Ethics point out that the Supreme Court has faced ethical challenges that were not adequately addressed by the existing Code of Conduct. For example, Justice Brett Kavanaugh was accused of sexual assault and misconduct during his Senate confirmation hearings, but the judiciary committees handling his nomination did not invoke the Code of Conduct for guidance or investigation. Similarly, Justice Clarence Thomas faced allegations of sexual harassment by a former employee, but the Court dismissed the case and did not refer it to the Code of Conduct committee. By having a Code of Ethics, they say, the Court could avoid the appearance of impropriety and ensure that all complaints are taken seriously and evaluated fairly.
However, not everyone is convinced that a Code of Ethics would be a panacea for the Supreme Court's woes. Some argue that a Code of Ethics would be difficult to enforce, given the Court's prominent but discreet role in the legal system and the limited means of accountability available to other branches of government or the public. For example, the Senate cannot impeach or remove a Supreme Court justice solely for violating the Code of Ethics, as the Constitution specifies strict standards for impeachment based on "high crimes and misdemeanors." Likewise, the Supreme Court's own internal disciplinary procedures are largely confidential and discretionary, and their outcomes are rarely disclosed to the public.
Moreover, some skeptics claim that a Code of Ethics could create new problems or conflicts of interest. For instance, the drafting of a Code of Ethics would require input from the justices themselves, who may have different views on what constitutes ethical behavior or how to balance their roles as impartial judges and as political appointees. Furthermore, some groups or individuals might use the Code of Ethics as a pretext for attacking or pressuring justices whose decisions they disagree with, thereby compromising the Court's independence and impartiality. And even if a Code of Ethics were adopted, it would not necessarily prevent all ethical challenges or guarantee that the Court remains above reproach.
Nevertheless, the idea of a Code of Ethics remains appealing to many who see it as a practical and symbolic way to address the Supreme Court's ethical problems. Some possible elements of a Code of Ethics for the Supreme Court could include:
- A preamble that affirms the Court's commitment to the rule of law, the Constitution, and public trust;
- A list of general ethical standards, such as honesty, integrity, impartiality, diligence, respect, and courtesy;
- A set of specific rules or guidelines for avoiding or dealing with conflicts of interest, such as recusals, disqualifications, disclosures, and waivers;
- A process for receiving and processing complaints or allegations of ethical violations, including confidentiality, impartiality, and due process;
- A range of possible sanctions or remedies for proven or admitted violations, such as reprimands, suspensions, disbarments, or referrals to law enforcement or other authorities.
Of course, adopting a Code of Ethics is not a silver bullet that can solve all the Supreme Court's problems overnight. It would require careful deliberation, discussion, and revision, as well as a broad consensus among the Court's stakeholders and the public. But creating a Code of Ethics could be a step in the right direction towards restoring the Court's credibility, promoting ethical behavior, and upholding the principles of justice and fairness that underlie the American legal system. Whether or not a Code of Ethics is the answer, the Supreme Court must address the allegations and concerns that have cast a cloud over its reputation and remind us why it matters.
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