The Supreme Court Adopts a Code of Conduct

The Supreme Court Adopts a Code of Conduct

Legal Sidebari

The Supreme Court Adopts a Code of Conduct
November 17, 2023
On November 13, 2023, the U.S. Supreme Court announced the adoption of the Code of Conduct for
Justices of the Supreme Court of the United States (Justices’ Code of Conduct). The Justices’ Code of
Conduct is a set of five ethical canons and accompanying commentary adopted by the Supreme Court that
will guide Justices in the performance of their duties. While Supreme Court Justices were already subject
to some other ethics laws and regulations, the adoption of the Justices’ Code in November 2023
represents the first time that the Court has implemented and published a written code of conduct for
Justices. This Legal Sidebar provides background on federal judicial ethics rules in effect before the
adoption of the Justices’ Code of Conduct, then briefly outlines the substance of the Justices’ Code. The
Sidebar closes with discussion of considerations for Congress related to Supreme Court ethics.
Background on Federal Judicial Ethics
Since 1973, judges on the lower federal courts—that is, federal courts other than the Supreme Court—
have been subject to a set of ethical canons now known as the Code of Conduct for United States Judges
(Judges’ Code of Conduct). The Judicial Conference of the United States (Judicial Conference), the
national policymaking body for the U.S. courts, adopted the Judges’ Code of Conduct to promote public
confidence in the integrity, independence, and impartiality of the federal judiciary.
The Judges’ Code of Conduct is not a binding set of laws but rather a set of “aspirational rules” by which
federal judges should strive to abide. 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.” However, some violations
of the Judges’ Code of Conduct may be grounds for discipline under a federal statute known as the
Judicial Conduct and Disability Act of 1980. The Judges’ Code of Conduct contemplates the possibility of
discipline under the Act for judges who violate its tenets but also states that “[n]ot every violation of the
Code should lead to disciplinary action.” Under the Act, a judge who engages in misconduct may be
publicly or privately reprimanded, temporarily barred from hearing new cases, disqualified from an
existing case, or referred for possible impeachment. Formal discipline under the Act is rare.
Neither the Judges’ Code of Conduct nor the Judicial Conduct and Disability Act applies to the Justices of
the Supreme Court. Until November 2023, there was no single body of ethical canons with which the
nation’s highest court was required to comply when discharging its judicial duties.
The absence of such a body of canons did not mean that Supreme Court Justices were unconstrained by
ethical rules and guidelines. Prior to November 2023, Justices repeatedly stated that they would “consult
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the [Judges’] Code of Conduct” and other authorities “to resolve specific ethical issues.” In addition,
several federal statutes impose other ethical requirements on 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, since 1991, the Court has voluntarily resolved to comply with
certain Judicial Conference regulations pertaining to outside earned income, outside employment,
honoraria, and the receipt of gifts by judicial officers, even though those regulations would otherwise not
apply to Supreme Court Justices.
Supreme Court Code of Conduct
On November 13, 2023, the Supreme Court issued the Justices’ Code of Conduct, which was adopted by
the sitting Justices. According to a statement of the Court accompanying the Justices’ Code of Conduct,
the Code is intended to “set out succinctly and gather in one place the ethics rules and principles that
guide the conduct of the Members of the Court,” and, for the most part, the “rules and principles are not
new.”
The new code contains five ethical canons:
1. A Justice Should Uphold the Integrity and Independence of the Judiciary.
2. A Justice Should Avoid Impropriety and the Appearance of Impropriety in All Activities.
3. A Justice Should Perform the Duties of Office Fairly, Impartially, and Diligently.
4. A Justice May Engage in Extrajudicial Activities that Are Consistent with the Obligations
of the Judicial Office.
5. A Justice Should Refrain from Political Activity.
Canons 1 and 2 are broadly worded and are accompanied by brief notes explaining that each Justice
should “maintain and observe high standards of conduct” and “should not allow family, social, political,
financial, or other relationships to influence official conduct or judgment.” Canon 3 governs
disqualification, laying out circumstances in which Justices should recuse themselves from participating
in cases because their impartiality might reasonably be questioned. (Ethical canons related to recusal are
distinct from, but related to, the federal recusal statute.) Canon 4 allows Justices to speak, write, and teach
about the law and engage in other extrajudicial activities, subject to certain limitations. Canon 5 provides
that Justices should not engage in political activities, such as holding a leadership role in a political
organization, endorsing candidates for political office, political fundraising, making campaign
contributions, and running for elected office.
The canons of the Justices’ Code of Conduct and the Judges’ Code of Conduct are nearly the same, but
the two Codes have different explanatory notes, which may make a difference in how the Codes are
applied in practice. In commentary on the Justices’ Code of Conduct, the Supreme Court explains that the
Justices’ Code “is substantially derived from the Code of Conduct for U.S. Judges, but adapted to the
unique institutional setting of the Supreme Court.” Specifically, the Court states that much of the
commentary on the Judges’ Code is “inapplicable” to the Supreme Court, and that the Justices’ Code and
accompanying commentary are instead “tailored to the Supreme Court’s placement at the head of a
branch of our tripartite governmental structure.”
One key difference between the Justices’ Code and the Judges’ Code is that the Supreme Court’s new
ethical rules expressly recognize Justices’ “duty to sit”—the obligation to participate in cases unless
disqualified. The assertion that Justices have a duty to sit reflects a practical difference between the
Supreme Court and the lower federal courts. In the lower courts, another judge may step in to take a

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recused judge’s place; by contrast, current law does not allow another jurist to hear a case in a recused
Justice’s stead. The disqualification of a Justice from a particular case can thus leave the Court with an
even number of Justices to decide the case and increase the likelihood that the Court would be evenly
divided and unable to create binding precedent for future litigants. Because the judgment of the court
below is affirmed when the Supreme Court divides evenly in a case, the commentary on the Justices’
Code of Conduct—quoting a memorandum by former Associate Justice Antonin Scalia—states that the
recusal of a Justice is “effectively the same as casting a vote against the petitioner.” In light of those
considerations, the commentary explains, the recusal requirements in Canon 3 of the Justices’ Code differ
from the requirements in the Judges’ Code, and recusal rules for Justices “should be construed narrowly.”
Like the Judges’ Code of Conduct, the Justices’ Code of Conduct itself contains no enforcement
mechanism. Alleged violations of the Judges’ Code can be the basis for a misconduct complaint under the
Judicial Conduct and Disability Act. The Justices’ Code cannot serve as the basis for a similar process
because the Act does not apply to Supreme Court Justices.
Considerations for Congress
Prior to November 2023, a number of commentators and legislators had called for the Supreme Court to
be subject to a formal code of conduct. As a previous Legal Sidebar discussed in more detail, some
proposals would have had an entity other than the Supreme Court, such as Congress or the Judicial
Conference, impose a code of conduct on the high court. Those proposals potentially raised constitutional
issues related to the separation of powers or the unique role of the Supreme Court within the federal
judiciary. By electing to adopt its own code of conduct, the Supreme Court avoided those legal questions
and removed a possible source of interbranch conflict.
One key question that remains following the adoption of the Justices’ Code of Conduct is whether the
new Code will visibly affect the Justices’ behavior. Even before adopting the Justices’ Code, Supreme
Court Justices were subject to certain ethics laws, regulations, and voluntary practices. The statement of
the Court regarding the Justices’ Code says that the Code “largely represents a codification of principles
that we have long regarded as governing our conduct.” This statement suggests that the Justices may
believe that they have been appropriately following those principles, including in certain instances that
have prompted public discussion of the Court’s ethics practices, and that the Code may not require them
to make significant changes. On the other hand, the commentary on the Justices’ Code states that “the
Chief Justice has directed Court officers to undertake an examination of best practices” to facilitate
compliance with the Code, and that the Court continues to consider issues including recusal review,
disclosure obligations of parties and their counsel, and Justices’ financial disclosures.
Related questions concern the extent to which Congress or the public will know whether Justices are
complying with the Justices’ Code, and what will happen if a Justice violates the Code. The Judicial
Conduct and Disability Act does not apply to Supreme Court Justices, and there is currently no other
formal mechanism to enforce the Justices’ Code of Conduct. The Justices’ Code also does not require
Justices to disclose any information beyond what is already required by applicable laws and regulations.
Congress does, however, have the power to investigate matters related to Supreme Court ethics. For
example, the Senate Judiciary Committee has been conducting an investigation into transportation and
gifts provided to members of the Court.
Any Congressional attempts to create enforcement mechanisms for the Justices’ Code of Conduct would
likely be subject to constitutional limits, though the exact scope of those limits is unclear. If Congress
amended the Judicial Conduct and Disability Act to apply to Justices, it could raise issues under Article
III, section 1 of the Constitution, which states that the federal judiciary shall include “one supreme
Court.” Misconduct complaints under the Act are currently subject to initial review by the chief judge of
each federal judicial circuit, with further review by circuit judicial councils and the Committee on Judicial

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Conduct and Disability within the Judicial Conference. Each stage of review is thus overseen by judges
from the lower federal courts. Allowing lower court judges to review ethical decisions of Supreme Court
Justices would arguably conflict with the constitutional status of the Supreme Court as the nation’s single
highest tribunal. In addition, some commentators, legislators, and Justices have asserted that legislation
related to Supreme Court ethics may violate constitutional limits or norms related to separation of powers.
Others contend that Congress has significant constitutional authority to regulate Supreme Court ethics.
If Congress wished to sanction a Justice who had allegedly violated the Justices’ Code of Conduct or
another applicable ethical rule, the Constitution would also impose limits. Article III forbids Congress
from reducing Supreme Court Justices’ salaries or removing them from office except via the extraordinary
and blunt remedy of impeachment. Thus, Congress may have limited means to induce Justices to behave
ethically.
Because the Supreme Court possesses the authority to determine the constitutionality of legislative
actions, the Supreme Court itself would likely play a critical role in determining whether Congress could
validly impose or enforce ethics rules on the Court. There is limited legal precedent on this issue because
Congress and the Supreme Court have historically taken an approach focused on interbranch comity,
declining to test the full extent of their powers in order to avoid conflict between the legislative and
judicial branches. Thus, Congress has at times deferred to the Court to set court rules and procedures, and
the Court has at times acquiesced to ethics legislation without formally addressing its constitutionality. It
is therefore difficult to predict whether or how the Court might address the constitutionality of possible
Supreme Court ethics legislation.

Author Information

Joanna R. Lampe

Legislative Attorney

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