There is much ado these days about U.S. supreme court justices, their influence, ethics, and ideology. The “ado” stems from the partisan divide that seems to dominate all three branches of government. For writers, this divide creates ethical dilemmas and word choice decisions based on bias and allegiance to one side or the other. At stake is the sense of right or wrong in how our highest court delivers just and fair answers to constitutional questions. Four years ago, on January 17, 2019, I blogged about the ethics of judicial opinions. I narrowed that topic because most Americans see SCOTUS only as written work, in the form of judicial opinions. At the time, the general public seemed uninterested in SCOTUS in terms of oral arguments, written briefs, constitutional research, legal debates, justices in conference, or anything having to do with what goes on at SCOTUS behind closed and very secret doors. Back then, there was little controversy about the ethics of federal judges, or their opinions. SCOTUS was respected, even revered, by most lawyers and litigants, both in and out of the public sphere. In large part, SCOTUS was seen as our highest court and deeply steeped in the rule of law, and the reliability of judicial precedent, rather than political ideology. The justices, four years ago, were largely seen as the human face of the often-mysterious supreme court. They were, as a group of nine, engaged in work that mirrored events in American society. Today, there is an ongoing inquiry into individual judges’ integrity, ideology, and ethics. Social media is rife with questions, answers, debates, and conspiracy theories about the justices because a few of them seem open to ethical inquiry and political debate.
Outside Influence Inside the U.S. Supreme Court
It’s fair to say that most Americans have assumed for at least 247 years that our Supreme Court is an ethical body that renders fair and just rulings on constitutional issues without outside, nonjudicial, ideological push or influence. Said differently, we have generally trusted supreme court justices to follow their oaths when deciding what is and is not constitutional. That assumption may be altered if in fact, outside actors unduly and unethically influence some justices.
Reportedly, Justice Clarance Thomas did not disclose gifts of luxury vacations, overnight stays, trips on a private jet . . . from a conservative billionaire over the course of many, many years.[1] Additionally, he may have allowed a businessman friend, Harlan Crow, who paid for his vacations and others to buy his mother’s house in Georgia. There was also an incident in 2020 in which Thomas’ impartiality came into question.[2]
Forbes Magazine headlined the ethical issues this way: “Clarence Thomas: Here Are All The Ethics Scandals Involving The Supreme Court Justice Amid Horatio Alger Revelations.” Forbes summarized six instances of ethical breaches by Justice Thomas.”[3] Justice Thomas’s conduct was also recently reported by the Washington Post. Their 2016 headline claimed, “Clarence Thomas has for years claimed income from a defunct real estate firm.”[4]
Justice Samuel Alito is also under ethics scrutiny. His conduct is loosely connected to his intense anti-abortion views and the way his formal opinions were leaked in advance of the official release by the court. There were also some travel expenses paid by wealthy friends, who may have benefited from his court decisions.[5] His ethical issues are different than Justice Thomas’s. They arise, at least in part, from his language in the recent Dobbs v. Jackson Women’s Health Organization decision. In a blistering opinion, he authored the court overturned Roe v. Wade and Planned Parenthood v. Casey, ruled that abortion is not one of the personal freedoms guaranteed by the Federal Constitution and relegatrd the decision to state legislators on abortion laws. Justice Alito said, “The Constitution does not grant a right to abortion. Roe and Casey must be overturned, and the people and their elected officials must once again have the power to control abortion.[6]
The crisis of confidence in SCOTUS stems from the ideological positions of Justices Thomas and Alito. On June 28, 2023, NPR’S Nina Totenberg put it this way. “The annual cascade of Supreme Court decisions this week will make lots of headlines, but polls show that Americans of all political stripes are increasingly troubled by the lack of a code of ethics for the high court.”[7]
The Power Of SCOTUS’ Words
“The judiciary’s power comes from its words alone—judges command no army and control no purse. In a democracy, judges have legitimacy only when their words deserve respect, and their words deserve respect only when those who utter them are ethical. Opinion writing is public writing of the highest order; people are affected not only by judicial opinions but also by how they are written. Therefore, judges and the opinions they write—opinions scrutinized by litigants, attorneys, other judges, and the public—are held, and must be held, to high ethical standards. Ethics must constrain every aspect of the judicial opinion.”[8]
Ethical opinions are as opinionated as they are debatable. The political wings—far right and deep left express a vastly different view of what America is today and how it got to the political chasm between conservatives and progressives. This division calls for a definition of the term ethical in context. The dictionary defines ethical as “of or pertaining to morality or the science of ethics” and “pertaining to morals.” Even without a dictionary, we know that judges should be of good character, virtuous, righteous, and responsible.”[9]
Code Of Conduct For United States Federal Judges
“Federal judges must abide by the Code of Conduct for United States Judges, a set of ethical principles and guidelines adopted by the Judicial Conference of the United States. The Code of Conduct provides guidance for judges on issues of judicial integrity and independence, judicial diligence and impartiality, permissible extra-judicial activities, and the avoidance of impropriety or even its appearance. Federal judges may not hear cases in which they have either personal knowledge of the disputed facts, a personal bias concerning a party to the case, earlier involvement in the case as a lawyer, or a financial interest in any party or subject matter of the case.”
The Code of Conduct for United States Judges was adopted by the Judicial Conference of the United States to promote public confidence in the integrity, independence, and impartiality of the federal judiciary. However, while it applies to all other federal judges at the district and appellate levels, it does not explicitly apply to Justices of the U.S. Supreme Court. Although the Justices consult the Code, along with other sources, for guidance when performing their judicial duties, the Court is not presently subject to a defined body of general ethical rules.[10]
All other federal judges are subject to rigid ethical codes. “Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary. Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities. Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently. Canon 4: A Judge May Engage in Extrajudicial Activities That are Consistent With the Obligations of Judicial Office. Canon 5: A Judge Should Refrain From Political Activity.” [11]
SCOTUS
This blog, unlike my 2018 effort, is a tip-toe into SCOTUS’s internal ethical parameters. The prima facie question is whether justices are driven by ideology and influence or by the Constitution and legal precedent. If so, what ethical norms are applicable to how justices do their job in enforcing constitutional law in lower federal courts and all state courts?
Court Curbing
The notion of “curbing” SCOTUS is a rare topic. American democracy and governmental order are based on the principle of separation of powers. We have three distinct branches entrusted with overlapping authority. Each branch, the executive, the legislative, and the judiciary is constitutionally vested. They are not co-equal. They have individual mandates. One is to lead from the White House. Another passes laws from the Capitol. The third resides in a court building equally challenged these days by political fervor and ideological stamping. But only the judicial has the power to declare state and federal laws unconstitutional. For that reason alone, the notion of curbing its powers is a frequent occurrence.
There are a variety of mechanisms by which SCOTUS may be curbed. Most obviously, amendments to the constitution can be proposed by Congress and ratified by the states to reverse or modify unpopular decisions. But Congress is not limited to amending the constitution in cases involving statutory as opposed to constitutional interpretations. Even in cases of constitutional interpretations, the Court is sometimes engaged in an ongoing dialogue with the political branches than in asserting judicial power to interpret the Constitution with finality.[12]
By its explicit terms, the Code governs only the judges of the lower federal courts. It does not apply to Supreme Court Justices, nor has the Supreme Court formally promulgated its own ethical code. As a result, there is presently no single body of ethical canons with which the nation’s highest court must comply when discharging its judicial duties. The absence of such a body of canons does not mean that Supreme Court Justices are wholly unconstrained by ethical norms and guidelines. Even though the Code does not formally apply to Supreme Court Justices, the Justices “consult the Code of Conduct” and other authorities “to resolve specific ethical issues.” Several federal laws impose various other ethical requirements upon the Justices. “For example, 28 U.S.C. § 455 requires federal judges, including Supreme Court Justices, to recuse themselves from particular cases under specified circumstances, such as when the judge or Justice ‘has a personal bias or prejudice concerning a party’ or ‘a financial interest in the subject matter in controversy.’ Congress has also directed Supreme Court Justices to comply with certain financial disclosure requirements that apply to federal officials generally. In addition, the Court has voluntarily resolved to comply with certain Judicial Conference regulations pertaining to the receipt of gifts by judicial officers, even though those regulations would otherwise not apply to Supreme Court Justices.”[13]
THE US SENATE AND THE US SUPREME COURT
On Thursday, July 20, 2023, the U.S. Senate Judiciary Committee approved legislation that would impose strict new ethics rules on Scotus. The proposed bill would address revelations about Supreme Court justices taking free luxury trips and receiving other financial benefits from wealthy benefactors. The bill would need 60 votes to pass the full chamber, a challenge nearly impossible to meet. The Democratic majority said, “We are here because the highest court in the land has the lowest standards of ethics anywhere in the federal government and justices have exhibited much improper behavior, not least in hapless efforts to excuse the misdeeds.”[14] Republicans retorted that “This bill is not about oversight or accountability, “It is about harassing and intimidating the Supreme Court.”[15]
Senate Bill 359 says, “This bill makes various changes related to the ethical standards, financial disclosure requirements, and recusal requirements that apply to Supreme Court Justices. Among the changes, the bill requires the Supreme Court to adopt a code of conduct for Justices and establish procedures to receive and investigate complaints of judicial misconduct; adopt rules governing the disclosure of gifts, travel, and income received by the Justices and law clerks that are at least as rigorous as the House and Senate disclosure rules; and establish procedural rules requiring each party or amicus to disclose any gift, income, or reimbursement provided to Justices. Additionally, the bill expands the circumstances under which a Justice or judge must be disqualified; and requires the Supreme Court and the Judicial Conference to establish procedural rules for prohibiting the filing of or striking an amicus brief that would result in the disqualification of a Justice, judge, or magistrate judge.”[16]
With politics elusively in place, the Brennan Center for Justice weighed in, saying, “Congress has the power to regulate the Supreme Court. In the wake of a series of ethics scandals involving Supreme Court justices, the Senate Judiciary Committee’s bill would safeguard against corruption on the high court. With public opinion of the Court at historic lows, reform is urgently needed to restore faith in its impartiality. Some opponents claim that reforms would be somehow unconstitutional. While Congress must respect the separation of powers and decisional independence of the justices, it has long exercised its constitutional power to regulate ethics in the Supreme Court. Congress must now take further action to rein in abuse of power in the high court. Our constitutional system of checks and balances requires it. The list of recent unethical conduct by Supreme Court justices and members of their families is long. It includes repeated failures by Justices Clarence Thomas and Samuel Alito to disclose lavish gifts from billionaires with ties to right-wing legal organizations, failures by nearly all of the justices to recuse themselves from cases in which they had financial connections to the litigants, and justices’ spouses benefiting financially from law firms and nonprofit groups with business before the Court.”[17]
Reuters reported, “The committee’s consideration of the measure, introduced by Senator Sheldon Whitehouse, gave Democrats a platform to decry the ethics of some members of the Supreme Court, whose 6-3 conservative majority continues to steer the law in a rightward direction.”[18]
Fix The Court.com reported, “The nine justices of the Supreme Court are the only federal judges not bound by the Code of Conduct for U.S. Judges, which goes beyond the basic ethics laws enacted after Watergate and creates uniformity around thorny issues like recusals and participation in political activities. Research compiled from Fix the Court points out that while none of the justices has committed a removal offense, all nine of them are culpable of various ethical oversights, from leaving assets off their annual financial disclosure reports to speaking at partisan fundraisers to ruling on cases despite credible conflicts of interest.”[19]
Senate Minority Leader Mitch McConnell predictably painted ethical concerns as part of a broader attack on the court. “Democrats have moved from complaining about the Supreme Court’s reasoning to questioning its independence. House Speaker Kevin McCarthy, R-Calif., said ‘I think the Supreme Court, with three separate branches of government, has the ability to oversee themselves. Republican members of the Senate Judiciary Committee are expected to oppose the bill Thursday and a group of them plan a press conference Wednesday on what Graham called the “Democrats’ attempts to destroy the Supreme Court.”[20]
Unfortunately, it is almost certain that neither political party, much less the people of the United States will seriously consider ethics as a measuring stick in either SCOTUS decision-making or Congressional fixing. Ethics are anathema to politics. The Hatch Act is applicable to all Department of Justice employees. It generally prohibits department employees from engaging in partisan political activity while on duty, in a federal facility or using federal property. Political activity is activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group. The statute carries serious penalties including removal from federal employment.[21]
Believe it or not, there is an Office of Congressional Ethics. “In Congress, the U.S. Senate and House of Representatives have separate ethics rules and enforcement mechanisms. The Senate Select Committee on Ethics deals with ethics matters there. In the House, the Committee on Ethics, and the Office of Congressional Ethics, have responsibility regarding alleged ethical violations by House Members, officers, and employees. The OCE is a non-partisan, independent entity established by the House in 2008 to conduct initial reviews of allegations of misconduct and, when warranted, refer matters to the Committee on Ethics, which has exclusive jurisdiction to find violations and impose punishment. The Committee on Ethics can also initiate its own investigation without a referral from OCE. The U.S. Senate has its own separate rules of ethics.”[22]
Remarkably, the U.S. Supreme Court does not have a separate code of ethics notwithstanding each justice was obligated to ethical codes and conduct when they were lawyers and lower court federal judges. Their codes are modified versions of the ABA Model Code of Judicial Conduct. It has an admirable Preamble for all federal judges. “(1) An independent, fair, and impartial judiciary is indispensable to our system of justice. The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret, and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. Inherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system. (2) Judges should maintain the dignity of judicial office at all times and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence. (3) The Model Code of Judicial Conduct establishes standards for the ethical conduct of judges and judicial candidates. It is not intended as an exhaustive guide for the conduct of judges and judicial candidates, who are governed in their judicial and personal conduct by general ethical standards as well as by the Code. The Code is intended, however, to provide guidance and assist judges in maintaining the highest standards of judicial and personal conduct, and to provide a basis for regulating their conduct through disciplinary agencies.”[23]
Writing About Judicial Ethics
This blog is not about individual justices’ ethics. It is about the moral and ethical implications that arise when one or more justices seem, at least on the surface, to be focused on ideology, money, family relationships, or political positions, rather than constitutionality. The five canons identified above should bind the nine current justices who sit on our highest court. It is not for me to say which, if any, are in compliance or which if any are out of ethical step. The ethical rules of writing, not law or adjudication, bind writers. Even so, there is some cross-over and nuance in their canons that should apply to our writing about them. They should uphold their integrity. We should honor that. But when they stumble or jump over their ethical canons, we should not be hesitant to write about it. Supreme Court justices should judge and act impartially and diligently. So should we. They may engage in extrajudicial activities consistent with their office. We should write about that only when extrajudicial conduct is at issue. They should refrain from political activity. But we are not similarly bound.
There is a clear demarcation, a point of distinction between how justices should act and what we should say about their actions. The most important and substantive issue before the court and before authors and writers are embedded in Canon Five—political activity. When we write about their political activities, rather than their judicial performance, we should follow the essence of our own ethical codes. “Ethical writing is writing that clearly indicates (via documentation) where source material has been incorporated into one’s own writing. Ethical writing is also writing that acknowledges a range of perspectives on an issue. Ethical writing is writing with a level of inclusion, respect, and acknowledgment of diversity. The importance of ethical writing, then, is based not only upon the avoidance of plagiarism but also on avoiding the weaknesses of bias and exclusive language, sexist, racist, homophobic, etc. This strengthens the credibility and persuasiveness of the writer’s argument.” [24]
While it is not routinely found in ethical writing guides, we have a special obligation when we write about the law and its administrators—lawyers and judges. We must not cause harm to anyone’s reputation or character by writing false or malicious information. We must not misrepresent the truth for personal or professional gain.[25]
Most importantly, when we write about allegations of indisputable judicial misconduct, we owe our readers a unique obligation. “Judicial misconduct breaks down the very fiber of what is necessary for a functional judiciary- citizens who believe their judges are fair and impartial. The judiciary cannot exist without the trust and confidence of the people. Judges must, therefore, be accountable to legal and ethical standards. In holding them accountable for their behavior, judicial conduct review must be performed without invading the independence of judicial decision-making. . . More than any other branch of government, the judiciary is built on a foundation of public faith; judges do not command armies or police forces, they do not have the power of the purse to fund initiatives, and they do not pass legislation. Instead, they make rulings on the law. Rulings that the people must believe came from competent, lawful, and independent judicial officers.”[26]
As the summer of 2023 simmers from fires, tornados, heat domes, floods, and blackouts, the ethical health of SCOTUS is on the minds of many. National Public Radio is a constant beam of bright light and fair journalism in America. Its mission is clear. “The mission of NPR, in partnership with its member stations, is to create a more informed public, one challenged and invigorated by a deeper understanding and appreciation of events, ideas, and culture within the United States and across the globe. To this end, NPR reports, produces, acquires, and distributes news, information, and other content that meet the highest standards of public service in journalism and cultural expression.”[27]
NPR follows news reporting from many diverse sources. It’s reporting on the ethical quagmire at SCOTUS will cause much discussion about SCOTUS justices. In their May 5, 2023, political release headlined, “What to Know About the Supreme Court and Ethical Concerns,” they identify and briefly comment on current ethical issues and possible misconduct by Justices Clarence Thomas, Neil Gorsuch, John Roberts, Brett Kavanaugh, and Amy Coney Barrett.[28]
NPR reported on May 3, 2023, “There’s a toxic brew of mistrust toward U.S. institutions. It’s got real consequences. The highest court in the land shouldn’t have the lowest ethical standards,” said Senate Judiciary Chairman Sen. Dick Durbin, D-Ill., at a hearing on ethics oversight at the high court. “That reality is driving a crisis in public confidence in the Supreme Court. The status quo must change.”[29]
[1] https://www.npr.org/2023/04/21/1171384563/what-the-justice-clarence-thomas-scandal-says-about-ethics-on-the-supreme-court
[2] https://www.npr.org/2023/05/10/1175305970/a-look-at-justice-clarence-thomas-controversial-tenure-on-the-supreme-court
[3] https://www.forbes.com/sites/alisondurkee/2023/05/05/clarence-thomas-here-are-all-the-ethics-scandals-involving-the-supreme-court-justice-amid-new-revelations
[4] Reporters Shawn Boburg and Emma Brown, April 16, 2023. https://www.washingtonpost.com/investigations/2023/04/16/clarence-thomas-ginger-financial-disclosure/
[5] Ibid.
[6] https://legal.thomsonreuters.com/blog/the-doctrine-of-stare-decisis/#source-1
[7] https://www.npr.org/2023/06/28/1183337280/supreme-court-ethics-financial-disclosures-possible-conflicts-of-interest
[8] http://jay.law.ou.edu/faculty/Jmaute/SSRN_ID1299767_code882062.pdf. “Ethical Judicial Opinion Writing.” Bu Gerald Lebovits, Alifya V. Curtin, and Lisa Solomon. Page 1. THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 21:237.
[9] Ibid
[10] https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges
[11] http://www.uscourts.gov/rules-policies/judiciary-policies/ethics-policies
[12] The Oxford Guide to the Supreme Court, Second Edition, Oxford University Press, Oxford New York, 2005, “Court Curbing” at page 231,
[13] Ibid.
[14] https://www.nytimes.com/2023/07/20/us/politics/senate-supreme-court-ethics-rules.html
[15] Ibid.
[16] https://www.congress.gov/bill/118th-congress/senate-bill/359
[17] https://www.brennancenter.org/our-work/analysis-opinion/congress-has-authority-regulate-supreme-court-ethics-and-duty
[18] https://www.reuters.com/world/us/senate-panel-set-vote-us-supreme-court-ethics-reform-2023-07-20/
[19] https://fixthecourt.com/fix/code-of-ethics/
[20] https://rollcall.com/2023/07/19/senate-panel-to-vote-on-supreme-court-code-of-ethics-mandate/
[21] https://www.justice.gov/jmd/political-activities
[22] https://oce.house.gov/learn/citizen-s-guide
[23] https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/2011_mcjc_preamble_scope_terminology.pdf
[24] https://www.kent.edu/stark/ethical-writing-reliable-sources
[25] https://human.libretexts.org/Courses/Harrisburg_Area_Community_College/Technical_Writing%3A_An_Open_Educational_Resource/01%3A_Chapters/1.04%3A_Ethical_Considerations_in_Technical_Writing
[26] https://www.unodc.org/dohadeclaration/en/news/2019/08/judicial-misconduct-and-public-confidence-in-the-rule-of-law.html
[27] https://www.npr.org/ethics/
[28] https://www.npr.org/2023/05/05/1174057179/supreme-court-congress-ethical-hearing
[29] https://www.npr.org/2023/05/03/1173382045/americans-arent-thrilled-with-the-government-the-supreme-court-is-just-one-example
I am an author and a part-time lawyer with a focus on ethics and professional discipline. I teach creative writing and ethics to law students at Arizona State University. Read my bio.
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I am an author and a part-time lawyer with a focus on ethics and professional discipline. I teach creative writing and ethics to law students at Arizona State University. 
My latest novel is Hide & Be. 
If you have an important story you want told, you can commission me to write it for you. 