Two things seem true about modern professional life. One, most professional activities nowadays (legal ones, anyway) are backed by a code of conduct—roughly, a set of written guidelines instructing participants how to behave to realize certain values their professional institution accepts. Professional societies like the American Philosophical Association have a Code of Conduct. Universities and colleges have codes of conduct, usually separate ones for faculty and students. For-profit and non-profit corporations have them, as do government agencies. Codes of conduct are so commonplace that it’s almost a mark of unprofessionalism if a company or organization doesn’t have one. People want assurance that they’re dealing with others who not only have good values, but who have thought wisely about how to navigate situations that may interfere with fulfilling the special responsibilities of their profession. (Consider: Doctors have the special responsibility of diagnosing disease, humanities professors don’t!) The second thing that seems to me to be true is this. Codes of conduct ought to be useful and not merely symbolic. A code of conduct should not be a device for merely creating the impression that an organization appears to care about ethics (whether it does or not), or that it’s simply keeping up with societal trends. A code of conduct should be able to guide conduct. It will contain guidelines that make sense and that people can really implement in their actions, thereby making the organization’s values become a reality in the world. If a code of conduct is to be useful in this sense, its guidelines, at the very least, must be clear. The U.S. Supreme Court’s recent “Code of Conduct for Justices of the Supreme Court of the United States” (hereafter, “Justices’ Code”) is problematic on both points.
The Justices’ Code, which was adopted on November 13, 2023, and signed by all nine Justices, was announced in response to several new revelations last year about Justices participating in cases where they had, or could have, potential conflicts of interest. This issue is not new, but all the current Justices’ extrajudicial activities have come under more scrutiny. One ProPublica report concerning Justice Clarence Thomas and another concerning Justice Samuel Alito received considerable attention. Justice Alito accepted several gifts from Paul Singer, a billionaire donor and hedge fund manager. The gifts included a free vacation to an Alaskan fishing resort in 2008, which included a free private jet flight valued at $100,000. Alito did not report the free vacation. A company owned by Singer was a party in the case Republic of Argentina v. NML Capital, Ltd., decided in 2014. In a 7-2 majority opinion, the Supreme Court affirmed a decision ordering the Argentine government to pay Singer’s company $2.4 billion. Justice Alito sat in the case and voted in the majority. His failure to report might also have been a federal crime.
Justice Alito’s conduct received considerable attention because Alito defended his behavior publicly. In an opinion piece for The Wall Street Journal, Alito denied any wrongdoing and rejected arguments that he should have recused himself in the Argentina case. Justice Thomas explained in April 2023 that he didn’t disclose the gifts he received because he was advised that they weren’t reportable. (Thomas eventually filed disclosures in May, completing them in August.) And in May, it came out that Justices Sotomayor and Gorsuch didn’t recuse themselves in cases involving Penguin Random House, the publishing house that’s made both of them a lot of money.
According to the Supreme Court, it issued the Justices’ Code—the first-ever written code of conduct for Supreme Court Justices—because it wanted to dispel “the misunderstanding that the Justices of the Court, unlike all the other jurists in this country, regard themselves as unrestricted by any ethics rules” (Justices’ Code, p. 1). In principle, this is a good thing to do. The Justices are bound by some federal ethics laws, and the Court previously issued a statement of ethics principles, but maintaining the appearance of impartiality and acting impartially (to the extent possible) are essential for the public’s confidence in the legal system, and especially the most powerful court in the land. When your actions amount to the final say on important issues for over 330 million people, surely the public would like some assurance that you’re deciding the issues fairly, and that there are measures in place to ensure this will happen.
Critics say that the Justices’ Code provides no such assurance. For one thing, the Justices’ Code creates no new legal restrictions on what the Justices may do. It’s not a law. The Justices’ Code is a set of what professional associations call “aspirational” guidelines. (Think: We really hope you conduct yourself according to these standards, and shame on you if you don’t.) The Court even says the Justices’ Code is modeled largely on the Code of Conduct for U.S. Judges, another set of aspirational ethics guidelines for federal lower court judges. For another thing, several commentators have noted that the Justices’ Code has no “enforcement mechanism”—such as an oversight board and/or a disciplinary system for violations of the Code’s rules. Without this, the worry is that the Justices’ Code amounts to little more than a detailed honor code or a written promise to self-police. Thus, the U.S. Senate is exploring the possibility of tougher ethics laws for the Supreme Court.
The lack of an enforcement mechanism doesn’t necessitate that a code of conduct is inadequate to guide, however. What about what the rules say? The language of the Justices’ Code suggests that the Supreme Court appears to care about impartiality as well as avoiding impropriety and the appearance of impropriety. Are the Code’s guidelines sufficiently clear and implementable to promote impartiality and more transparency in judicial decision-making, particularly on questions about recusal?
Unfortunately, the answer is no. Consider Canon 3 of the Justices’ Code: “A Justice should perform the duties of the office fairly, impartially, and diligently.” After outlining the special responsibilities of the office in Section A of Canon 3, the Court gives its guidelines for disqualification or recusal:
B. Disqualification
- A Justice is presumed impartial and has an obligation to sit unless disqualified.
- A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties . . .
- The rule of necessity may override the rule of disqualification . . .
There are at least three problems in Section B. First, the standard of evaluation in §B (2)—”an unbiased and reasonable person”—is hopelessly vague. Does “unbiased” mean no bias whatsoever? Arguably, there are no unbiased persons in this sense. Rawls knew that the only way to eliminate cognitive bias was to construct a thought experiment where we don’t have it. The Justices don’t have access to a real-life veil of ignorance, so who is this unbiased person? If “unbiased” doesn’t mean “no bias,” then what kind of bias is permissible and to what degree, and why use the descriptor “unbiased”? The Court’s own standard in §B (2) exhibits a bias toward a prevailing legal custom: namely, judging conduct by evaluating it against what a “reasonable person” would think.
The second problem concerns the “reasonable person” standard. (I mentioned Rawls a moment ago, but this is not “reasonableness” as in Rawls’s political liberalism.) In several areas of law, courts use the reasonable person test to resolve important legal questions. In tort law for instance, roughly speaking, to recover for injury, one thing the plaintiff must prove is that the defendant’s conduct more likely than not deviated from what a reasonable or prudent person would do in the same or similar circumstances; such deviation is the sense in which the defendant acted wrongly for most torts. The “reasonable person” is not a real person but a heuristic device for deriving an impartial judgment. At the risk of grossly oversimplifying, the test essentially is: How would a hypothetical person in circumstances like the defendant, but who doesn’t act wrongly, be expected to act? The scholarly literature on the reasonable person test is voluminous; some of it is positive, some of it is critical (see here, p. 11ff). This much is clear, however: Context matters if the reasonable person test is to be in any way instructive. Suppose you sue me for negligence. You claim that I damaged your parked car with my bike. To recover damages, you’d have to prove that my conduct deviated from the level of care that we’d expect reasonable bike riders to exercise in the same circumstances, and that this is what caused the damage.
What isn’t clear in the Justices’ Code is which context is supposed to inform the reasonable person test for recusal. Is it, say, a consensus of reasonable members of the public observing the Supreme Court? In the Justices’ Code, the rest of §B (2) outlines a series of situations in which most people would likely agree that recusal is appropriate (personal prejudice toward some party in a case, past and present associations, etc.). But crucially, the guideline says, “an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” In his Wall Street Journal piece, Justice Alito said, “No such person would think that my relationship with Mr. Singer meets that standard.” Well, the only people who could make that determination were Alito, Singer, and whoever else joined them. They are the only ones who were aware of all the relevant circumstances because Alito didn’t disclose the trip. Thus, no one else in the public could think Alito’s relationship with Singer meets that standard! The implication is that it’s only what Justice Alito and his friends believe (and they all obviously approve) that informs what an unbiased and reasonable person would think about his voting in the Argentina case. Which is absurd.
Or is it? Maybe the Justices’ own subjective application of the standard is the lens the Court had in mind when constructing the recusal guidelines. The Commentary of the Justices’ Code states, “Individual Justices, rather than the Court, decide recusal issues” So, if an individual Justice has an ethics concern, they may ask themselves: What would an unbiased and reasonable Justice who is aware of all the facts do in the same or similar circumstances? They could deliberate by consulting their colleagues on the bench, or perhaps retired Justices. They could study Supreme Court history to see if there’s any precedent for their situation. Such inquiries may be productive and lead to good behavior, but there’s still a big problem. The purpose of those inquiries is to decide whether a Justice’s impartiality might reasonably be questioned. With all due respect to the Justices’ experience and expertise, if being and appearing impartial is what the Court is concerned about, it doesn’t appear impartial at all if the Justices’ subjective reasons are the right context for reasonable recusal. Quite the contrary, it looks like the Justices are the arbiters and potentially, what’s troubling, the rationalizers of their own behavior. This is precisely what sparked off the Supreme Court ethics controversy.
The third problem concerns §B (3): “The rule of necessity may override the rule of disqualification.” This is legalese, and it has been thoroughly analyzed elsewhere, but basically, it’s a guideline for resolving conflicts of duties. Let’s say the Supreme Court has decided to hear a case on an important issue. One Justice determines they can’t be unbiased given the parties involved. If this Justice recuses, it means there could be a “distorting effect” on the case: if the case ends up in a 4-4 tie, the recusal effectively disadvantaged the party who would ordinarily need a 5-4 vote to win. (At least that’s how Justice Scalia saw it.) In the lower federal courts, another judge may substitute for a recused judge, but there is no substituting on the Supreme Court. Hence the Court must balance the “duty to sit” and normal majority vote rules with the duty to be impartial. If the dilemma becomes recusing versus sitting to necessarily avoid a tie in an important case, the B (3) rule says sitting in the case may take priority. Put another way, the Supreme Court’s position seems to be that professional duties may trump professional ethics duties, at least sometimes. When exactly? The Justices’ Code doesn’t say, which means the B (3) rule provides no guidance about how to resolve these conflicts. It just says, “Hey, the numbers count sometimes.” But when? Undoubtedly, context matters, but what’s to prevent Justices from always taking that line even when recusal would be appropriate? Suppose Justice Alito had invoked the rule of necessity to justify sitting in the Argentina case. It isn’t clear to me that a reasonable person who was aware of all the relevant circumstances would agree that sitting is justified. More clarity about what to do is badly needed.
Whether the Justices’ Code will have any impact remains to be seen. The Court does appear to care about ethics, but their guidelines don’t appear to do anything to resolve the issues that inspired them. In effect, then, the Justices’ Code is a symbolic code of conduct. Hopefully, this version proves to be just a rough draft.
Heinrik Hellwig
Heinrik Hellwig is Visiting Assistant Professor of Philosophy at Seton Hall University, where he teaches courses in applied ethics and pre-law.
