There’s trouble at the Supreme Court, and it goes deeper than any single case the Justices will decide this year. In a months-long wave of news stories that crested in February, we learned all of this:
- A person or persons at the Court leaked the draft of the Dobbs decision that overturned the Roe and Caseydecisions long before it was issued. It’s not the first time a Supreme Court draft opinion in an abortion case has leaked; it’s the second time in 50 years – or, per the next bullet, perhaps the third time?
- A whistleblower came forward to claim that there had also been a leak to right-wing anti-abortion groups, and specifically to wealthy individuals who were members of the Supreme Court Historical Society, prior to the Hobby Lobby decision dealing with women’s contraceptive care.
- The Court’s subsequent investigation of the Dobbs leak failed to find the source of, or motives for, the leak, after taking sworn statements from everyone at the Court – except Justices and their spouses.
- As the New York Times, which broke the story, explained the Supreme Court Historical Society, “a charity tied to the Supreme Court[,] offers donors access to the justices [and]… has raised more than $23 million in the last two decades, much of it from lawyers, corporations and special interests.”
- The spouse of Supreme Court Justice Clarence Thomas, Virginia ‘Ginni’ Thomas had strategized with the White House about overturning the  election, and Thomas was the only justice to vote to withhold White House records involved in that effort from the Jan. 6 committee. Justice Thomas declined to recuse himself from that case. (As the same article notes, this is not the first time a Justice has declined to recuse himself or herself in cases where spouses are involved).
- The New York Times reported that Chief Justice John Roberts’ wife, Jane Sullivan Roberts, “has made millions in her career recruiting lawyers to prominent law firms, some of which have business before the court.”
- While the Justices have considered the issue, they have not been able to reach agreement on a code of conduct. (Full disclosure: one of us (Caroline) testified to the House Judiciary Committee in December 2022 on the need for a code of conduct for the Court.)
And don’t get us started on the Court’s increasing use of its “shadow docket,” in recent years to decide significant cases with little or no transparency. (You don’t have to get us started because Professor Stephen Vladeck has reviewed the subject here, for the Senate Judiciary Committee’s 2021 hearings on the Court’s dark-mode decision-making.)
Judges Should Avoid the Appearance of Impropriety
These troubling reports implicate a central tenet of judicial ethics that is concisely stated in the Code of Conduct for United States Judges, which is already in effect for the District and Circuit Courts and other federal judges (but not Supreme Court Justices). Canon 2 of the Code states that “A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities[.]” It then fleshes out this proscription:
(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge.” (Emphasis added).
In the Commentary to Canon 2, Canon 2A defines “the appearance of impropriety” as “…when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired…” Canon 2A also states that Canon 2 applies to judges’ professional and personal conduct.
Canon 2A also recognizes the behavioral constraints flowing from a judge’s public office: “A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.” In short, judges should expect, and conform to, high public expectations of personal and professional probity.
It seems fair to say that the news-stories cited here could cause reasonable people to conclude that, at the very least, the Court has been tainted with the appearance of impropriety. Whether any of this news warrants a Justice’s impeachmentand removal, or other penalty, is a question for another day, if more evidence about impropriety comes to light.
In light of these reports, it isn’t surprising that, even before the Court issued its Dobbs decision, Gallup’s polling in 2022 found that “Americans’ confidence in the court has dropped sharply over the past year and reached a new low in Gallup’s nearly 50-year trend.”
It might be seen as a positive development for democracy that citizens in a constitutional system that relies extensively on voting to put people in policy-making positions have decreasing confidence in a branch of government populated by appointed officials who aren’t personally accountable at the ballot box. There’s a potential here, however, for serious injury to the rule of law: erosion of confidence in the Court might spread contagiously, impairing public support for, and obedience to, decisions of lower federal courts and state courts.
As Alexander Hamilton famously remarked, the courts are the “least dangerous” branch, without money or military might to defend itself. The judiciary’s strength rests wholly on the faith the people place in its rulings and willingness to follow them without coercion. Canon 2A echoes Hamilton’s point: “Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges…”
While increased transparency in government decision-making might not promote agreement about resulting decisions, it does enable public understanding, marshaling of contrary arguments and supporting facts, and substantive debates about changes or refinements in decisions. Without transparency – and without strictly enforced codes of conduct – conflicts of interest among public officials can bloom and poison policymaking and enforcement.
A civil constitutional system’s sustainability – indeed, its survival – requires a substantial measure of transparency and prevention of conflicts of interest among the system’s most prominent and powerful decision-makers. The Supreme Court could start to repair its damaged credibility by engaging honestly and publicly with its apparent ethical deficiencies and by enacting and enforcing an ethics code for Justices.
Where Do We Go Next?
The Court should agree to subject itself to the existing Code of Conduct for United States Judges. The Court should expressly authorize the Judicial Conference’s Committee on Codes of Conduct to accept, hear, and opine on complaints about the conduct of Justices. The Court should further agree to implement recommendations for institutional reform that emerge from the Committee’s process on specific complaints.
As significantly, the Court should agree that individual Justices – and their spouses – will immediately cease to engage in behavior that impairs the ethical stature of the Court. Justices should always recuse themselves from cases where their participation implicates family finances or politics. And the Court should cease accepting outside donations to the Historical Society from private entities or individuals, especially, but not only, those that have business before the Court.
Employment of spouses by entities that have cases before the Court (or other involvement of spouses with or on behalf of entities before the Court) and private contributions to the Historical Society can, at a minimum, appear to buy access to Justices. The appearance of such access – or its actuality – never ends well for the integrity of public institutions.
You might think that none of this is going to happen, so why bother writing about it? The truth is that the Supreme Court may be too caught up in its own mythology of “judicial supremacy” to agree to police itself, but there are other branches of government. Most importantly in this case, there’s Congress. There are a number of bills in the hopper that would take the existing Code for U.S. judges and impose it on the Court. Congress has put ethics constraints on the Court before, and it’ll do it again. For the Court’s reputation and rule of law values, the Justices should prefer to put their own house in order, rather than have it done for them.