Legal Sidebari
A Code of Conduct for the Supreme Court?
Legal Questions and Considerations
February 6, 2019
The Code of Conduct for United States Judges (the Code)—a set of ethical canons that the Judicial
Conference of the United States (Judicial Conference) adopted to promote the integrity, independence,
and impartiality of the federal judiciary—governs the behavior of most federal judges. The Code does
not, however, explicitly apply to Justices of the U.S. Supreme Court. Although the Justices frequently
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.
Some observers maintain that “Supreme Court justices should be bound by the same code of ethics that
all other federal judges are required to follow.” To that end, some Members of the 116th Congress have
introduced legislation that would require the Judicial Conference to “issue a code of conduct[] which
applies to each justice” on the Court. Some commentators have questioned, however, whether Congress
should—or even could—impose a code of ethical conduct upon the Supreme Court.
This Sidebar canvasses the relevant legal considerations surrounding proposals to establish a Supreme
Court code of conduct. After discussing the existing Code that applies to lower federal judges, the Sidebar
next describes recent legislative proposals to create a similar code for the Supreme Court, as well as
potential constitutional obstacles to those proposals.
The Code of Conduct for United States Judges
The Judicial Conference—a body comprised of the Chief Justice of the Supreme Court and a selection of
judges from the lower federal courts—promulgated the Code to “prescribe[] ethical norms for federal
judges as a means to preserve the actual and apparent integrity of the federal judiciary.” The Code applies
to most federal judges, including most U.S. appellate and trial court judges. Among other things, the Code
instructs federal judges to:
Uphold the integrity and independence of the judiciary;
Avoid not only impropriety, but the appearance thereof;
Perform the duties of their offices fairly, impartially, and diligently;
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Avoid extrajudicial activities that would be inconsistent with the obligations of judicial
office; and
Refrain from political activity.
Notably, the Code is not a binding set of laws per se—the Code “contains no enforcement mechanism” of
its own, and it “is not designed or intended as a basis for civil liability or criminal prosecution.” Rather,
the Code is predominantly a set of aspirational guidelines by which federal judges should strive to abide.
Nonetheless, judges who fail to abide by the Code risk judicial discipline (such as being temporarily
barred from hearing new cases) or disqualification from an existing case.
Ethics and the Supreme Court
By its explicit terms, however, the Code only governs 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 singular body of ethical canons with which the highest court in the nation
must comply when discharging its judicial duties. That is not to say, of course, 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 nevertheless “consult the Code of Conduct” and
other authorities “to resolve specific ethical issues.” Moreover, although Congress has not yet enacted
legislation mandating the adoption of a Supreme Court code of conduct per se, several statutes do purport
to impose various other ethical requirements upon the Justices. 28 U.S.C. § 455, for example, requires
Supreme Court Justices to recuse themselves from particular cases under specified circumstances, such as
when the 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. Moreover, 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. The fact remains, however, that Supreme Court Justices—unlike their counterparts on the lower
federal courts—are not subject to a specific comprehensive body of ethical rules.
A Code of Conduct for the Supreme Court?
In response to calls to mandate a code of ethics for the Supreme Court, a group of Members of the 116th
Congress has introduced the For the People Act of 2019 (H.R. 1), which, among other things, would
require “the Judicial Conference [to] issue a code of conduct, which applies to each justice . . . of the
United States.” H.R. 1 thus echoes similar bills from past Congresses that would have likewise subjected
the Supreme Court to a code of judicial conduct. As of the date of this Sidebar, H.R. 1 remains pending
before the House of Representatives.
Legal Considerations for Congress
Legislative proposals to impose a code of conduct upon the Supreme Court raise an array of legal
questions. The first is a question of statutory design: which institution will Congress charge with
formulating the ethical standards to govern the Justices? A legislative proposal introduced in the 115th
Congress, for instance, would have entrusted the Supreme Court itself with the task of “promulgat[ing] a
code of ethics,” and would have given the Justices substantial (albeit not unbounded) freedom to design
the rules that would govern their own conduct. H.R. 1, by contrast, would not allow the Court to design
its own ethical code; the act would instead bestow that responsibility upon the Judicial Conference.
A more difficult question is whether legislative efforts to require the Supreme Court to abide by a code of
judicial conduct would violate the constitutional separation of powers. To ensure that federal judges
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would decide cases impartially without fear of political retaliation, the Framers of the Constitution
purposefully insulated the federal judiciary from political control. Some observers have therefore argued
that imposing a code of conduct upon the Supreme Court would amount to an unconstitutional legislative
usurpation of judicial authority. Others, however, emphasizing the significant extent to which Congress
may validly regulate the Supreme Court (such as Congress’s authority to impeach Justices and decide
whether Justices are entitled to salary increases), have advanced the contrary argument that forcing the
Supreme Court to adopt a code of conduct would constitute a permissible exercise of Congress’s authority
to regulate the Court’s practices.
Because the Supreme Court possesses the authority to determine the constitutionality of legislative
enactments, the Supreme Court itself would appear to have a critical role in determining whether
Congress may validly impose a code of ethical conduct upon it. It is difficult to predict whether the Court
would uphold the constitutionality of a legislatively mandated code of conduct, as existing judicial
precedent offers minimal guidance with respect to how the Court might resolve the constitutional
questions discussed in this Sidebar. The Supreme Court has never explicitly decided, for instance,
whether the federal statute requiring Supreme Court Justices to recuse themselves from particular cases
effects an unconstitutional legislative encroachment upon the judiciary. Nor has the Court ever directly
addressed whether Congress may validly subject Supreme Court Justices to financial reporting
requirements or limitations upon the receipt of gifts.
Distinct from this separation-of-powers issue is whether Congress may validly authorize the Judicial
Conference—which is composed almost exclusively of judges from the inferior federal courts—to
promulgate ethical rules to govern their counterparts on the High Court. The Constitution explicitly
contemplates that the Supreme Court will remain “supreme” over any “inferior” courts that “Congress
may from time to time ordain and establish,” such as the federal district and appellate courts. Some
observers—including, most notably, Senior Associate Justice Anthony Kennedy—have therefore
suggested that it would be unconstitutional—or at least “inappropriate”—“for district and circuit judges to
make rules that Supreme Court judges have to follow.”
A Supreme Court code of conduct could raise additional issues to the extent that it requires Justices to
disqualify themselves from particular cases. Unlike in the lower courts, where a district or circuit judge
from the same court may step in to take a recused judge’s place, neither retired Justices of the Supreme
Court nor lower court judges may hear a case in a recused Justice’s stead. Thus, the disqualification of a
Supreme Court Justice from a particular case could leave the Court with an even number of Justices to
decide the case—and, by extension, increase the likelihood that the Court will be evenly divided and
therefore unable to create binding precedent for future litigants.
As a practical matter, however, the aforementioned legal questions arising from these proposals may
ultimately be purely academic. For one, if Congress opted to compel the Supreme Court to comply with a
code of judicial conduct, the Justices might simply comply with its mandates without challenging
Congress’s constitutional authority to impose them. The Court has often acquiesced to congressional
attempts to subject Justices to specific ethical standards. For example, when Congress decided to subject
the Justices to financial disclosure requirements, for example, the Justices opted to comply with those
provisions rather than challenge their constitutionality in court. Justices have likewise recused themselves
pursuant to 28 U.S.C. § 455 discussed above without questioning whether Congress possesses the
constitutional authority to enact a judicial disqualification statute. In any event, a federal court would
probably lack an opportunity to adjudicate the validity of a congressionally imposed code of conduct
unless one or more of the Justices filed a formal lawsuit to invalidate it—an eventuality that, while
possible, appears remote.
If one or more of the Justices refused or failed to comply with a newly created code of conduct, however,
Congress might encounter difficulties enforcing its tenets. The Constitution forbids Congress from
reducing Supreme Court Justices’ salaries or removing them from office except via the extraordinary and
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blunt remedy of impeachment. Thus, Congress may lack precise tools to induce recalcitrant Justices to
behave ethically. That said, promulgating an ethical code for the Supreme Court could nonetheless
establish norms for proper judicial behavior that guide the Justices’ actions.
Author Information
Kevin M. Lewis
Legislative Attorney
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