Is it Time for a SCOTUS Code of Ethics?

Federal judges have to abide by an ethics-based Code of Conduct. Well, most of 'em, anyway. The Supreme Court, being, well, supreme, sets its own rules.

In his 2011 end-of-year report, Chief Justice John Roberts addressed the rising tide of Supreme Court ethics questions by arguing that the Code of Conduct, which is mandatory for all other federal judges, should not be mandatory for Supreme Court justices, as it does not "adequately answer some of the ethical considerations unique to the Supreme Court."

Prepare to fill in the gaps then Mr. Chief Justice, as Congress is aiming to force the Supreme Court to adopt its own ethical standards, based, in part, on that Code of Conduct, reports Politico.

The Supreme Court Ethics Act of 2013 would require the Court to start with the Code of Conduct and make modifications as necessary to fit their unique placement in our legal system.

What prompted the legislation? Many would point to questionable non-recusals by Justices Thomas and Kagan when the Court upheld the vast majority of the Affordable Care Act in 2011. Though Justice Thomas had no direct conflict, his wife had a number of professional connections to organizations opposed to the ACA, including founding a political action committee that explicitly opposed Obamacare, reports The Associated Press.

Though he failed to disclose his wife's substantial income from these organizations at the time, a year after the decision, he submitted amended disclosures, explaining that the omissions were due to a misreading of the forms' filing instructions, reports The New York Times.

Meanwhile, according to the AP, Justice Kagan acted as Solicitor General while the legislation was drafted and introduced. Her office worked on possible legal justifications for the ACA while she was in charge, though she maintained during her confirmation hearings that she only attended a single meeting, in which the ACA was only superficially discussed.

Since then, Freedom of Information Act requests have yielded internal emails from her office, which give some indications that she may have had a slightly more involved, though still very hands-off, role in the administration's work on the legislation.

Despite the fact that both Kagan and Thomas' impartiality could be questioned, and despite the appearance of possible bias, neither stepped away from the case.

Ethics at the Supreme Court level have mostly been handled by self-governance. According to Roberts' aforementioned end-of-year exposition on ethics, Justices consult the Code of Conduct, other materials and treatises on ethics, the Court's Legal Office, the Judicial Conference's Committee on Codes of Conduct, as well as the other Justices, when an ethics question presents itself.

The proposed legislation, should it pass, and should it pass constitutional muster, would go a long way towards setting transparent standards of conduct for our nation's most prestigious and most important court.

Related Resources:

• Can Congress impose ethics rules on the US Supreme Court? (ABA Journal)
• Disclosure: Alito's Stocks, Ginsburg's Glamour and Scalia's Shotgun (FindLaw's U.S. Supreme Court Blog)
• Rep. Slaughter Wants a Supreme Court Code of Ethics (FindLaw's U.S. Supreme Court Blog)
• Obamacare Lawsuit: Is Justice Elena Kagan Impartial? (FindLaw's U.S. Supreme Court Blog)