The Supreme Court of the United States (SCOTUS) has recently put forth a new Code of Conduct. Generally following the architecture of the Code of Conduct for U.S. Judges, it imitates the structure, core principles, and a majority of the clauses with the same wording. The obligation to ensure all involved parties have their represented right to be heard lawfully, and the exclusion of the duty to desist from engaging with one party in a case without the other party’s awareness, though present in the previous code, have been logically removed as they apply primarily to the lower courts.
However, the new SCOTUS conduct code is not without its controversial changes. Unlike the Code of Conduct for U.S. Judges that doesn’t quite include disciplinary processes but declares judges should uphold and enforce high standards of conduct, the new SCOTUS Code simply states that justices should ‘maintain and observe’ high standards of conduct while also dropping the responsibility to act in response to known code infringements by other justices.
Evidently, the language of the recently unveiled SCOTUS Code of Conduct has raised some eyebrows. There is no duty to ‘be faithful to…the law’, required by the Code of Conduct for U.S. Judges, present in the new code. While there does exist a duty to ‘respect and comply with the law’, this clause applies to a judge’s daily life but not necessarily to the duty to uphold and apply the law in the process of judging legal cases. The absence of this requirement has raised concerns, especially in light of the perceived rise in ideologically-driven decisions in the Supreme Court.
Of striking concern are the changes to the disqualification rules in the SCOTUS Code, which is closely in line with a statement made by the Supreme Court to the Senate Judiciary Committee earlier in the year. The rules begin with a new addition stating that a justice is presumed to be impartial, a statement that while being consistent with precedent, does not seem fitting in a code designed to direct judges on ethical responsibilities.
Despite the new additions and changes, the success of the SCOTUS Code primarily depends on how seriously the court perceives its new code. The omissions in the code commentary, which is a vital interpretive guide for judges and the preface to the new SCOTUS Code, raises concerns. The preamble claims the code merely details the ethical limitations the court has always upheld, and aims to ‘dispel’ any misunderstanding to the contrary. Nevertheless, despite the mixed messages, the code concludes constructively, outlining measures that the court is taking to provide guidance and training on recurrent ethical and financial issues.
For a deeper insight into the changes and implications of the new code of conduct, refer to the detailed analysis provided by Charles Geyh, Distinguished Professor and John F. Kimberling Chair in Law, Indiana University Maurer School of Law, on SCOTUS Blog.