By Ethan Rice, Lambda Legal Fair Courts Project
Public trust in the U.S. Supreme Court has hit historic lows over the last several years. The decline began even before the court overturned Roe v. Wade and decades of precedent. But since the Dobbs decision and amid the ongoing allegations of ethical violations by sitting Supreme Court Justices, the public’s concerns have continued to grow about whether our current Supreme Court, where a clear majority of justices are more loyal to an extreme far-right conservative agenda than they are to the Constitution, can possibly police themselves.
For the courts to serve their function in our democracy, the people must trust that those who make up the court are fair, impartial, and have the integrity to avoid any commitment to a specific political agenda or result in a case. Unfortunately, the Court’s majority continues to show that they prioritize their belief that they are above the rules every other judge must follow over the public’s trust. the public’s trust.
On Nov. 13, to try to slow the public outcry about ethics scandals at the Supreme Court, the Court announced that it had adopted the first-ever written Code of Conduct for Justices of the Supreme Court. Unfortunately, the justices did not make this new code enforceable and they remain the only judicial body in the country that does not have an enforceable code of conduct its members must follow.
Since the summer of 2022, Lambda Legal has been calling for the creation of an enforceable code of conduct for Supreme Court justices, as one way to address the alleged ethical violations and the public’s lack of confidence in the Court. This is one of several court reform efforts Lambda Legal supports as the clearest ways to restore the integrity of our democracy and protect our civil rights. It is profoundly disappointing and unacceptable that, rather than demonstrating a commitment to necessary ethics reform, the Supreme Court instead has chosen to try to mollify detractors by producing a code that places less stringent requirements on Supreme Court justices than other federal court judges. Where our highest court should set the highest standards of ethics and integrity, this non-mandatory set of rules lacks any possibility of disciplinary action against a justice who fails to comply. With this toothless code of conduct, the justices are still simply continuing to pay lip service to policing themselves without even the threat of consequences.
And we already know that this does not work.
What does the Supreme Court’s New Code of Conduct Actually Do?
First, the Code of Conduct for Justices of the Supreme Court really isn’t “new.” The justices explain in their statement regarding the code of conduct that they believe they have long followed a common law code of conduct. But, they say, they decided to issue this written code to dispel the “misunderstanding” that they believe they are not bound by any set of ethics rules. However, throughout this new code, the justices make clear that they absolutely do believe they do not have to follow the same ethical rules that all other federal judges are required to follow. The justices use the word “should” 53 times throughout the code, rather than “must” or “shall” as many other judicial codes use. The lack of mandatory language is obvious and striking.
And since the Court is still policing itself under this code, no disciplinary action can be taken by any outside actors or institutions against a justice for failing to comply. Where the disciplinary actions for lower court judges include private censure, public censure, requesting the judge voluntarily retire, and, when warranted, a certification by the Judicial Conference to the House of Representatives that it should consider impeachment of the judge, the Judicial Conference and other potential oversight bodies continue to have no role in reviewing charges of improper conduct by, and imposing penalties on, any of the justices. If, as the justices said, they were modeling their written code after the Code of Conduct for U.S. Judges (which applies to all other federal judges), they completely missed everything that makes that Code useful for addressing unethical behavior.
The Supreme Court’s code of conduct falls short in many other ways, too. The code strongly discourages justices from disqualifying or recusing themselves from cases unless they absolutely must do so, and each justice remains responsible for determining whether and when they should do so. There is no oversight or appeal available if a party disagrees with a Justice about their decision to hear a case. Once a Supreme Court Justice decides they are unbiased, that remains the final say.
Additionally, the justices hold themselves explicitly to a different legal standard than other federal judges in multiple parts of the code. For example, under the code of conduct for federal judges, a judge “should not make public comment on the merits of a matter pending or impending in any court.” But the Supreme Court justices decided to add a qualifier, they should not “knowingly” make public comments about current cases or cases that could eventually be before them. This removes incentives from the justices that exist for other federal judges to take affirmative steps to be attentive and be circumspect in their public comments to reduce the likelihood of conflicts and appearance of bias, rather than recklessly disregarding the potential for violating the rule with improper comments.
Simply put, this code of conduct falls far short of what is needed to address the serious concerns of the public whose trust has already been broken by this Court.
Why is this important to LGBTQ+ people and people living with HIV?
In addition to the reasons for public distrust discussed above, LGBTQ+ people and people living with HIV often report very low levels of trust in the court system due to frequent negative experiences in court. In Lambda Legal’s most recent survey, Protected and Served? (2022), only 8.5% of all LGBTQ+ survey respondents and respondents living with HIV reported having complete trust in the court system, while 32.2% of respondents reported having no trust at all in the courts.
LGBTQ+ people and people living with HIV are in courthouses every day across the country. While only a small number of cases are taken by the Supreme Court, major LGBTQ+ and HIV cases have often ended there. In fact, just last month, Lambda Legal asked the Supreme Court to take up the Sixth U.S. Circuit Court of Appeals’ decision in L.W. v. Skrmetti, which allowed Tennessee’s ban on gender-affirming care for people under 18 to go into effect.
With the significant amount of current litigation on LGBTQ+ issues, particularly regarding the rights of trans and nonbinary youth, we can expect to see more cases about the rights of LGBTQ+ people and people living with HIV heading to the Supreme Court for review over the next few years. Justices like Clarence Thomas and Samuel Alito, who have publicly stated their opposition to LGBTQ+ civil rights in some of our most important Supreme Court cases, must be bound by enforceable ethics rules. As in the rules governing the lower courts, these rules should include anti-bias and harassment provisions that can help to prevent negative experiences for LGBTQ+ people, people living with HIV, and everyone who comes before the Court. This type of code of judicial conduct would be one step in the right direction in reducing current appearances of bias and impunity, as well as the public trust problems exacerbated by apparent influence of rich donors on the Court.
What we need is a mandatory, enforceable code of conduct that is overseen not by the justices themselves, but by an independent body or set of judges from outside the Supreme Court.
The Supreme Court Ethics, Recusal, and Transparency (SCERT) Act is designed to do just that. It would require the justices to create a code of conduct with actual accountability and to establish a process for filing and adjudicating complaints against justices, among other helpful court reforms. Please contact your members of Congress to let them know you want to see passage of the SCERT Act because a mandatory, enforceable code of conduct for the Supreme Court is long overdue!
Check out our blog for more write-ups, including recent posts on International Day to End Violence Against Sex Workers and World AIDS Day.