Why the Supreme Court needs an ethics code

It’s a fair and practical reform that all Americans can get behind

An ethics code for justices is a critical first step toward restoring Americans’ confidence in the Supreme Court, Rostow writes.  (Tom Williams/CQ Roll Call file photo)
An ethics code for justices is a critical first step toward restoring Americans’ confidence in the Supreme Court, Rostow writes.  (Tom Williams/CQ Roll Call file photo)
Posted November 12, 2021 at 2:51pm

President Joe Biden’s Supreme Court reform commission has had a tumultuous past month. A draft report’s warnings about court-packing upset liberals, while two conservatives resigned for reasons that remain unclear.

Ultimately, these issues symbolize the American people’s warped views of the “highest court in the land.” Too many Americans expect justices on their “team” to legislate from the bench, rather than simply interpret the law as the Constitution requires.

The answer to this polarization is not court-packing or confirming more pro-life judges. Instead, Congress should pass an ethics code for the Supreme Court.

A code of conduct for the justices would be fair, practical, and effective. Such a nonpartisan reform would not change the fundamental structure of the court. But it would constrain the justices from conducting partisan or unethical activities that undermine public faith in the court and the law. A code of conduct could have held Chief Justice John Roberts accountable when he did not recuse himself from a 2016 case involving a company in which he owned stock. And ethical guidelines could have penalized Justice Ruth Bader Ginsburg after she told The New York Times in 2016, “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.”

The reality is that the American people are losing faith in the Supreme Court as a neutral arbiter. In October, the court’s approval rating sunk to 40 percent, the lowest since Gallup began tracking this statistic in 2000. Over half of Americans disapprove of the court’s job performance. But an ethics code could rebuild public faith in the judiciary at this critical time.

Instituting an ethics code is as pragmatic as it is necessary. While other court reform proposals would require two-thirds ratification of a constitutional amendment, an ethics code could be passed by Congress alone. And given the objectivity of ethics codes, such a proposal would be far more likely to attract bipartisan support — including at least 60 votes in the Senate to avoid a filibuster — than overtly partisan reforms like court-packing.

Ethics codes have already proved to be effective guardrails for members of the executive and legislative branches of government. Former Interior Secretary Ryan Zinke, former Health and Human Services Secretary Tom Price and former EPA Administrator Scott Pruitt all resigned due to pressure over possible ethics violations. 

Such codes of conduct have also held members of Congress accountable to the public. At the onset of the COVID-19 pandemic, advocacy groups leveraged a congressional ethics code to raise awareness about stock sales by Sens. Dianne Feinstein, Kelly Loeffler, Richard Burr, and James Inhofe. While investigations revealed no legal issues, the code served as an effective vehicle for inquiry and accountability.

To be sure, all justices are members of local bars and bound by local ethics rules. But the absence of a definitive federal code could create ethics crises, as was the case when the Federal Reserve came under fire recently for possible ethics violations. These violations could have been avoided had Congress created formal federal ethics guidelines for the nonpartisan body.

Ultimately, the American people must change their expectations of the Supreme Court. They should hope for justices who will interpret the law skillfully and compassionately, rather than apply simplistic litmus tests for nominees. Americans must regain faith in their institutions in order for their views to change. And an ethics code for justices is a critical first step toward restoring Americans’ confidence in the Supreme Court. 

Nicholas Rostow is a senior partner at Zumpano Patricios & Popok in New York, a senior research scholar at Yale Law School and a member of Checks and Balances, a group of conservative and libertarian lawyers standing up for the rule of law. He previously served on Capitol Hill and in the Reagan and George H.W. Bush administrations.