On November 13th, 2023, the Supreme Court of the United States of America for the first time in the nation’s history, instituted an informative code of ethics. When a court is positioned as the most elevated form of court in a country, one expects the duty of that specified court to be conducted with the highest level of diligence and care. To exercise an informed sense of prominent diligence and care, a code of ethics is to be expected. However, the Supreme Court has operated without a comprehensive code of ethics since its conception. Stemming from this chain of events, two insightful questions arise: What led to the formation of the Supreme Court’s code of ethics and what does it mean for the future? To tackle these valuable questions, one must first appreciate the fact that the Supreme Court has understood the need for accountability and acted accordingly. The Supreme Court rightly needed a code of ethics due to its unique position as the highest court in the country concerning other courts in the United States and its position in conducting significant court cases.
The Supreme Court must deliver a proper execution of law under the umbrella of the American founding documents, such as the Constitution. To truly understand the duties and obligations of the Supreme Court, is it necessary to see what separates them from the lower courts; lower courts meaning any and every court below the Supreme Court. Through this analysis, one will not only understand the duties and responsibilities of the Supreme Court, but one will also uncover the reasons why a code of ethics was finally required. To begin, what exactly is the Supreme Court? Why are they so pivotal in the United States? According to the Supreme Court on their official website, “The Court is the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.” [1] With such a fundamental role within American society, one can see the level of professionalism the Supreme Court must hold daily. The court must handle its stewardship with the highest level of care in its everyday duties. Ranging from a variety of significant cases each year, the Supreme Court must appreciate the ability of diligence and consistency in applying appropriate American lenses to each case it sees. As the ultimate judge in protecting equal justice under the law for the nation, one would assume that the people in charge are held to the highest standards of conduct imaginable. However, that is not the case. The American Bar Association states, “While Supreme Court justices must adhere to some ethical requirements set by federal statute, they are not bound by any rules that include ‘the full sweep of basic ethical principles’ that apply to other judges, the report accompanying the resolution says.” [2] In analysis, it is interesting to see the disparity of how such an esteemed court of law was held without a formalized code of ethics, while the rest of the United States’s courts are. There is a clear distinction between the ethical conduct of the standard court judge and a Supreme Court judge, with the former being held to a more holistic view of ethics. The typical judge is encapsulated by a wider range of ethical codes than the chief justices that help govern case law in the United States. However, why is there such a discrepancy between regular standard judges and the chief justices of the Supreme Court? The line of reasoning begs the question: how important is ethics truly within law, particularly for judges?
The value of ethics in law can not be unspoken. John S. Cooke in his work, Judicial Ethics Education in the Federal Courts, clearly states, “Given the importance of judicial ethics to the public's confidence in the judiciary, educating judges about ethics is a high and continuing priority in the federal courts. People appointed as federal judges typically have strong records of integrity and are motivated to act ethically, but inadvertent mistakes sometimes occur, and they harm the reputation of the judge and the judiciary.” [3] If ethics is considered so important, crucial even, within the law, in particular to federal judges, then one can ultimately conclude that the judge in question should be held accountable due to their unique role in guarding the public’s interests. After much deliberation, the Supreme Court ultimately established its code of ethics on November 13th, 2023. However, this action did not go smoothly. Johanna Kalb and Alicia Bannon in their piece titled, The Supreme Court Needs a Code of Ethics, recount, “Over the last two decades, almost all members of the Supreme Court have been criticized for engaging in behaviors that are forbidden to other federal court judges, including participating in partisan convenings or fundraisers, accepting expensive gifts or travel, making partisan comments at public events or in the media, or failing to recuse themselves from cases involving apparent conflicts of interest, either financial or personal.” [4] After a series of controversies, as stated previously, it was ultimately concluded a code of ethics should be formulated. Such questions need to be addressed: Should all judges, federal and state, be held to the same standard? What actions are acceptable or unacceptable for a judge to participate in? How will operations of law be conducted? All such questions are deliberated and formalized into one specific code of conduct for the Supreme Court for how a chief justice should act. Developing cohesion in the court system helps provide a greater sense of accountability. Now how does a code of ethics apply in reality?
From the information provided, one can conclude that the code of ethics helps provide a greater sense of accountability, security, and stability to the Supreme Court. As a result of its reputable nature as the highest form of court in the United States of America, The Supreme Court often deals with cases of high importance. Oftentimes, these cases require a foundation in ethical understanding. Nix, Warden V. Whiteside, a case dealing with second-degree murder, is one such case. It was ultimately decided that certiorari would be granted to decide a specific aspect of the case. [5] One such critical aspect of ethical understanding was when the court, in case law according to Google Scholar, “This Court has no constitutional authority to establish rules of ethical conduct for lawyers practicing in the state courts. Nor does the Court enjoy any statutory grant of jurisdiction over legal ethics.” [6] How does the Supreme Court make decisions on ethical conduct, if it does not abide by standards of ethical conduct? Such cases as Nix, Warden V. Whiteside are dealt with all the time. In creating a code of conduct, the Supreme Court better caters to its duty to the American people. It logically follows that it can not impose ethics onto lawyers, as they should have their ethics and means of conduct due to the nature of their profession, however, a court should have standards of conduct. When in trial, conducting legal proceedings is of significant importance.
The Supreme Court of the United States has justly created a code of ethics to govern its operations as a result of its need to hold itself accountable to other lower American courts in duty and practice. All people can agree, despite differing opinions, that the formation of a code of ethics in the Supreme Court is an excellent first step in elevating the ethical atmosphere of the Supreme Court. What does this mean for the future? How will the role of ethics continue to evolve in the context of the Supreme Court? In the future, one can hopefully expect to see greater emphasis and reliance on the code of ethics. Upon building improvements, one can rest assured that change is certainly not over.
Edited by Nolan Dietz-Velarde
[1] Supreme Court of the United States, “About the Supreme Court.” Home - Supreme Court of the United States, www.supremecourt.gov/about/about.aspx.
[2] American Bar Association, “Supreme Court Justices Should Follow Binding Code of Ethics, Aba House Says.” American Bar Association, February 27, 2023 www.americanbar.org/advocacy/governmental_legislative_work/publications/washingtonletter/feb-23-wl/scotus-ethics-0223wl/.
[3] John S. Cooke “Judicial Ethics Education in the Federal Courts.” The Justice System Journal 28, no. 3 (2007): 385–93. http://www.jstor.org/stable/27977361:1
[4] Johanna Kalb and Alicia Bannon. “The Supreme Court Needs a Code of Ethics.” Edited by ALAN J. BEARD. Democracy & Justice: Collected Writings 2019. Brennan Center for Justice, 2020. http://www.jstor.org/stable/resrep28415.33: 1
[5] Nix, Warden V. Whiteside, 475 U.S. 157, Supreme Court of the United States (1986)
[6] Nix, Warden V. Whiteside
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