Robert H. Tembeckjian is administrator and counsel to the New York State Commission on Judicial Conduct, and he served on the American Bar Association advisory committee that revised the Model Code of Judicial Conduct in 2007.
During the contentious Supreme Court confirmation process for Brett M. Kavanaugh, and soon after he was confirmed on Oct. 6, dozens of ethics complaints against him were filed. All were dismissed on Dec. 18 by a federal judicial review panel, without investigation, because once Kavanaugh was elevated to the Supreme Court, he became immune to ethics oversight that applies to judges in lower courts.
Allegations that the review panel had deemed “serious” — that Kavanaugh had testified falsely during his confirmation hearings about his personal conduct and about his activities in the White House under President George W. Bush, and that he had displayed partisan bias and a lack of judicial temperament — went into ethical limbo.
The fate of the Kavanaugh complaints seems to have stirred House Democrats to action: The first bill introduced in the 116th Congress, H.R. 1, includes, along with provisions for voting rights and campaign finance reform, a measure to require the development of a judicial code of ethics that would apply to all federal judges, including those on the Supreme Court.
Chief Justice John G. Roberts Jr. is on the record as opposing such a move. In 2011, he addressed it at some length in his year-end report on the federal judiciary. Roberts argued that the justices already adhere informally to some ethical strictures, and that the separation of powers doctrine precludes Congress from imposing such a mandate on the Supreme Court.
Roberts’s statement didn’t deter Rep. Louise M. Slaughter (D-N.Y.) from introducing legislation in 2013 and in subsequent sessions that would impose a code of ethics on the Supreme Court. Slaughter died last year. Her proposals never gained traction in Congress, and the current incarnation of the idea probably faces a steep challenge, with Republicans controlling the Senate and Democrats controlling the House.
But there is a way to avoid bickering on Capitol Hill over the legislation and to sidestep the inherent clash between the substantive question posed by House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) — should the Supreme Court be the only court in the country that is not bound by a code of ethics, or should the nation’s highest court be held to the highest standards of behavior? — and Roberts’s procedural objection. The Supreme Court could unilaterally adopt an ethics code and end the debate.
Nothing but the collective will of the nine justices prevents it. No one has articulated a compelling argument against a Supreme Court code of ethics, although there are legitimate concerns over process. For example, although it would be constitutionally untenable for an outside entity to adjudicate alleged code violations against members of the court, any transgressions alleged against one of the nine justices could be reviewed and decided by the other eight.
If the Supreme Court doesn’t adopt a code, should Congress try to impose one? There are precedents for Congress codifying certain aspects of the court’s operations. For example, although the Constitution is silent on the number of Supreme Court justices, a congressionally adopted statute sets the number at nine and designates a quorum requirement of six. The Constitution did not create or mention the position of chief justice, which Congress codified into law.
Legislation by Congress to impose a judicial ethics code on the Supreme Court would almost certainly lead to a constitutional confrontation that would ultimately end up in the very Supreme Court that any reputable ethics code would deem conflicted and disqualified from deciding.
All the more reason for the justices to take the matter into their own hands.
By voluntarily subjecting itself to the same high standards of conduct applicable to every other judge in the United States, the Supreme Court would demonstrate ethical leadership by example at a time of national anguish, when the conduct of so many governmental and political figures is under scrutiny, and public confidence in democratic institutions is distressed.
A suggestion for the first ethics matter to be taken up by the justices: the languishing raft of complaints against one Brett M. Kavanaugh, which raise fundamental questions about his integrity and will cast a shadow over the court until examined and either refuted or verified.