After all of the bad press the U.S. Supreme Court has gotten in the last few years, one might imagine that adopting an ethics code would be a reasonable solution to its ongoing issues, right? Well, not so much. If the point is to subject the justices to practical oversight and supervision, an ethics code would likely fall short. The justices would likely end up supervising themselves. Justices are already required by law to recuse themselves where their impartiality might reasonably be questioned. As a practical matter, a code might encourage politicized harassment of the justices without truly subjecting them to any real source of external authority.
But, when one looks at how the California State Bar handled the Tom Girardi investigations, there is all but little hope that the fox guarding the hen house will do much of any good. One can understand the symbolic appeal of an ethics code. The rest of the federal judiciary is subject to the Code of Conduct for US Judges, adopted by the Judicial Conference in 1973. The Judicial Conference is composed of the Chief Justice, the chief judges of the various circuits, and some other judges.
The code consists of five common sense “canons,” each accompanied by modestly detailed commentary. Its provisions are pretty much what one would expect. Judges should uphold the integrity and independence of the judiciary, avoid impropriety and its appearance, perform their duties fairly and impartially, and refrain from political activity. Extrajudicial activities are allowed if “consistent with the obligations of the judicial office.”
There has not been one modern example of one of the justices openly acknowledging that he or she has engaged in conduct that violates any of the canons. What would not make sense, given the Supreme Court’s unique constitutional status, would be for a Supreme Court code of conduct to give formal authority to any external body to oversee the justices. Even if such a conferral of authority were constitutional, there would be a meaningful risk that such a body would use its supervisory authority to try to influence the outcome of Supreme Court cases. Certainly no supervisory body could remove a justice. That requires impeachment and conviction by the Senate.
Yet it doesn’t seem like a very good idea for the justices to sit in judgment of one another, both for reasons of collegiality and because the justices might not always be able to disentangle their preferred outcomes from the principled disqualification of other colleagues from specific cases. If they avoided this danger by just never advising each other to recuse, that would leave us more or less where we are today.
The root of the problem boils down to the superego of the human psyche. Many lawyers are bad people, and when those bad people become judges they do not become better people—after all, when one becomes a judge, he or she obtains more power and virtually no true accountability—but instead become worse people. But we cannot blame lawyers completely for the problems we are faced with today in the U.S. legal system. When a person points a finger at someone, three fingers are pointing back at the person. We are ultimately to blame for letting this happen.
Moreover, it is natural for a person who can throw a ball fast or accurately to become an NFL quarterback or MLB pitcher. It is natural for a person who likes to solve problems to become an engineer or a research scientist. And so it is natural for people who are bullies or punks to become members of the legal system, including lawyers and then judges. Not to paint with a broad brush with these and certain other professions, but the proclivity is there.
Additionally, the moral fabric of society continues to disintegrate. As it does so, the superego will continue to sprial downward. So, the real root of the problem is our societal deficiencies. However, as unlikely as it may be, I hope the court goes about restoring its own legitimacy. The way to do that is by fulfilling the court’s core functions of protecting individual rights, the rule of law, and the basic institutions of democracy. No code of ethics will make that happen.