Former federal judge: It is 'simply a scandal' that the US Supreme Court lacks an official ethics code

31 March 2023

In the United States' lower federal courts, judges are subject to an official Code of Judicial Conduct. But there is no such code for the U.S. Supreme Court, whose image has suffered badly in 2022 and 2023.

From the overturning of Roe v. Wade in Dobbs v. Jackson Women's Health Organization to reports that far-right GOP activist Ginni Thomas (Justice Clarence Thomas' wife) pushed for the 2020 presidential election results to be overturned, the High Court has been inundated with negative publicity. The Court's approval ratings, according to polls, have plummeted to historic lows.

Moreover, one-third of the justices on the Supreme Court were appointed by a former president who was indicted by a grand jury on March 30 in connection with a criminal investigation by Manhattan District Attorney Alvin Bragg, Jr. Former President Donald Trump, in addition to Bragg's probe, is facing multiple criminal investigations — including two by the U.S. Department of Justice (DOJ) and special counsel Jack Smith and one by Fulton County, Georgia DA Fani Willis.

Some critics of the Roberts Court are calling for the justices to be subject to an official ethics code just as lower federal court justices are. Nancy Gertner, a retired federal judge who now lectures at Harvard Law School in Cambridge, Massachusetts, discussed that possibility in an interview with the Harvard Gazette published on March 29.

Asked why the High Court "lacks a code of ethics," Gertner replied, "The Supreme Court justices claim to be bound by the code of conduct that applies to federal judges. The key issue is that there is no enforcement mechanism. That is to say, if I, as a district court judge, ran afoul of the code of conduct, there would have been a mechanism to report that to the court above me. There would have been a mechanism to investigate, and there would have been arguably a mechanism for disciplinary proceeding. Because there is no one above the Supreme Court, so the argument goes, there is no enforcer."

Chief Justice John Roberts has said that the U.S. Supreme Court voluntarily follows the Code of Judicial Conduct. But according to Gertner, there is no official "enforcement mechanism."

Gertner told the Harvard Gazette, "We have no idea whether the justices are following it. The Judicial Code of Conduct is, to some degree — even with lower court judges — a self-regulating system. I file a disclosure statement, and I am trusted by my peers to be accurate in it. But there's no automatic enforcement; no one is checking it when it is submitted. Should it come out that I haven't put something on it, there is an enforcement mechanism, and there is a complaint that could be filed. No one is suggesting with the Supreme Court that there'll be monitors in the hall to make sure that they're following the Code of Conduct. All that people are suggesting is that when they follow the Code or don't follow the Code, there can be an enforcement mechanism."

The former federal judge argues that the lack of an official ethics code is damaging the Supreme Court's reputation and credibility.

Gertner told the Gazette, "Without a shadow of a doubt, the Supreme Court should have an enforceable ethics code. It is simply a scandal that they do not. What we've seen over the past numbers of years is the result of that scandal…. I was married to the legal director of the American Civil Liberties Union of Massachusetts, and we spent 17 years working our tails off to make sure that he never came near any of my cases. And now we hear that.… some of (Ginni Thomas') text messages may have been in the body of documents that were at issue in a case before the Supreme Court…. If the institution doesn't have an enforceable way of policing itself, then it is not to be trusted."

Read the Harvard Gazette's full interview with Nancy Gertner at this link.

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