Given the American Bar Association’s vast size and influence in the legal profession, its call this week for the U.S. Supreme Court to adopt a judicial ethics code is expected to draw plenty of notice.
But court watchers still have their doubts about whether the court will ever adopt such a measure.
The ABA’s House of Delegates voted Monday to call on the court to adopt a code of judicial ethics such as the ones under which other federal judges work. The measure also calls on other bar associations across the nation to pass their own resolutions urging the court to adopt a code of ethics binding on the justices.
“The fact that the House of Delegates voted to adopt this resolution should certainly tell the justices that they should stop ignoring the call for a Supreme Court ethics code,” said Stephen Gillers, a professor at New York University School of Law and a legal ethics expert. “The ABA’s vote is so for the most significant institutional expression of concern for a Supreme Court code of ethics. We haven’t seen this before. What we’ve had is individual members of Congress, we’ve had academics, we’ve had some local bar groups. But the ABA is a powerful, influential organization. I think this is as close to a game changer as you can get.”
‘I Think They’re Dug In’
Another court watcher, Tonja Jacobi of Emory University School of Law, is less optimistic about whether the resolution would bring about change.
“I think the ABA resolution is a sound and sensible proposal, but it is unlikely to have much impact. There have been many attempts, particularly in recent years, to influence the Supreme Court justices to voluntarily adopt a code of conduct and despite the controversy that some judicial behavior has garnered, they have chosen not to. I do not expect that to change,” Jacobi said.
Steven Lubet, a professor emeritus at Northwestern University Pritzker School of Law who has written about ethics at the Supreme Court, likewise is not optimistic that the ABA resolution will convince the court to adopt an ethics code.
Regarding the ABA resolution, Lubet said, “I think it is significant because it expresses the public’s concern that the court has never adopted a code. But I don’t think it’s going to make any difference. I think they’re intransigent on the issue. I think they’re dug in.”
Lubet, citing comments made by Justice Elena Kagan to a congressional committee in 2019 that Chief Justice John Roberts Jr. was studying a Supreme Court code of conduct, said, “It’s not that complicated. If they were going to have a code, they would have it by now. I don’t think they will adopt a code on their own.”
‘Imperils the Legitimacy of the Court’
Bills have been introduced in Congress in the past several years calling for a Supreme Court code of conduct, but those bills have not been voted out of committee, Lubet said. If that legislation is adopted by Congress, it could trigger a separation-of-powers dispute “and the ultimate decider would be the Supreme Court,” he said.
The lack of any ethics code has been in the news lately amid reports about Roberts’ wife, a legal recruiter, working for law firms that have business before the court, and Justice Clarence Thomas’ failure to recuse from a case about the Jan. 6 insurrection despite an admission by his wife, Ginni, that she attended a rally that preceded the storming of the Capitol.
Without clear ethics rules, the court’s authority is undermined, according to a statement by Washington state’s King County Bar Association, which submitted the resolution to the House of Delegates.
“The absence of a clearly articulated, binding code of ethics for the justices of the court imperils the legitimacy of the court. More than that, this absence potentially imperils the legitimacy of all American courts and the American judicial system, given the court’s central role enshrined in our federal republic. If the legitimacy of the court is diminished, the legitimacy of all our courts and our entire judicial system is imperiled,” the KCBA statement said.
“To be clear, this resolution is not grounded upon, nor does it ask the ABA House of Delegates to make any findings, or comment upon, any particular conduct by any one or more current or former members of the court. Still, events of recent years, especially including the January 6, 2021, insurrection, vividly remind us that the legitimacy of our nation’s key institutions lies at the foundation of our democratic and republican way of life. These events have made clear to most American citizens, and to a larger majority of American lawyers, that reforms to our institutions aimed at buttressing public confidence must be undertaken not in the midst of crisis, but before crises occur,” the statement said.
‘We Need Something That Will Get Nine Buy-Ins’
NYU’s Gillers says there are plenty of questions surrounding what will happen with the justices’ ethics code issue. A major one is who would write the code, he said.
“The best answer is the court itself would write it. That’s the easiest. It avoids separation-of-powers questions. But then, what does it mean to say the court will write it, because if several justices don’t recognize a code that other justices write, what have we got? We need something that will get nine buy-ins,” he said. “It’s complicated but it’s also simple because tomorrow the court could respond to it in an appropriate way,” he said.
Jacobi of Emory, while pessimistic about the odds of an ethics code being adopted, still supports the ABA’s passage of its resolution.
“Those who have studied this issue have revealed there doesn’t seem to be much political will” supporting adoption of a code of conduct, she said. “But I do think it is important that the ABA make these statements and put as much public pressure on all of these actors as possible, because the legitimacy of the Supreme Court is its greatest asset—and [it] is being eroded.”