The Supreme Court’s new ethics rules uphold the rule of law

On Monday, the Supreme Court issued a unanimously agreed “code of conduct” promoting transparency and clarity.

This release was a direct response to increasing external pressures over the past year. Members of the court, mostly Republican appointees, have come under intense scrutiny over gifts and other benefits they received during their judicial careers. Critics further pointed out that, unlike the rest of the federal government, the Supreme Court has no ethics rules specific to itself, although it is subject to applicable law.

Political partisans will analyze the new code to abuse justices who don’t vote with their political preferences. That was their goal all along, as opposed to any real concern for the proper administration of justice. But a thoughtful citizen can and should study these new rules to better understand the judiciary’s role in our constitutional system.

This code affirms the role of the judiciary in upholding the rule of law, which is a central tenet of our scheme of government. In particular, it provides principles for how judges should carry out their constitutional task of impartially interpreting and applying the law before them.

The document divides the code into five “rules,” general rules or principles that guide the conduct of judges.

The first rule states the general purpose of the Code for each justice to “preserve the integrity and independence of the judiciary.” Integrity and independence are the internal and external requirements of the proper functioning of the court. Integrity refers to an internal choice of behavior that refers to the actions that judges should or should not take to protect the impartial administration of justice. Independence refers to externalities, ensuring that outside forces do not undermine or corrupt the judiciary to the detriment of the separation of powers.

The following rules elaborate on these twin objectives. The first point of Rule 2 is the importance of “respect for the law”. This early assertion sets the benchmark to which judges must adhere and show respect for the standard that governs their actions. This clause also extends to the requirement that justices not join “that [practice] insidious discrimination based on race, sex, religion or national origin”. This rule affirms that judges must distinguish between people based on their relationship to the law, not on the basis of skin color, religious beliefs, or other characteristics.

Similarly, Canon 5 prohibits judges from engaging in “political activity”. Although justices participate in the political process in a broad sense, their relationship with our political system is unique. The Federalist 78 famously said that they should not exercise will or force, but “mere judgment.” Applying the law, they follow the will of the political wings and the people, not themselves. Engaging in partisan politics will give the impression that their votes and opinions are influenced more by their own will than by their obligation to uphold the existing law.

At the same time, the Code encourages justices to participate in civic life through teaching, lecturing, and publishing, especially on legal matters. These guidelines strengthen the authority of the court, but also point to the need for an educated citizenry and the place where judges can fill in to achieve that goal. We live in a republic where supreme human sovereignty resides in the population. A justice may have a special wisdom based on special experience that can help his fellow citizens in the self-governance of each.

In addition, the Code provides guidelines for the discharge of judges from cases and the acceptance of gifts or other benefits. This point, in particular, caused some confusion in the society.

Again, these rules protect the rule of law for the judiciary. Judges should recuse themselves when an apparent prior conflict would compromise their ability to judge impartially, not to show partiality. This especially includes cases involving family members, close friends or former partners. The Code rightly focuses here on general principles rather than specific cases, knowing that it cannot anticipate every problem and that wisdom is needed to properly navigate each situation.

The Code on Gifts and Benefits emphasizes transparency. Again, this rule upholds the centrality of the rule of law and mitigates even the appearance of bias. In history, justice has too often been sold to the highest bidder. These rules rightly seek a loophole that would complicate such corruption in our system.

Time will tell how well this Code works for the public and for justice, now and in the future. However, we can welcome its principles, which affirm the essential role of the rule of law and the impartial administration of justice for our judicial system. In our times of deep distrust of existing institutions and officials, this Code is a welcome attempt to restore some lost faith in our Constitution and its system of governance.

Adam Carrington is Associate Professor of Politics at Hillsdale College.