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1 Johanna Kalb & Alicia Bannon, Supreme Court Ethics Reform: The Need for an Ethics Code and Additional Transparency 1 (2019)

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Supreme Court



Ethics Reform

The  Need  for an  Ethics Code  and  Additional  Transparency

By Johanna  Kalb and Alicia Bannon PUBLISHED SEPTEMBER 24,2019


   oday,   the nine justices on the Supreme Court are
      the only U.S. judges - state or federal - not
      governed by a code of ethical conduct. But that
may be about to change. Justice Elena Kagan recently
testified during a congressional budget hearing that Chief
Justice John Roberts is exploring whether to develop an
ethical code for the Court.' This was big news, given that
the chief justice has previously rejected the need for a
Supreme Court ethics code.2
  In fact, however, the Supreme Court regularly faces
challenging ethical questions,3 and because of their
crucial and prominent role, the justices receive intense
public scrutiny for their choices. Over the last two decades,
almost all members of the Supreme Court have been criti-
cized for engaging in behaviors that are forbidden to other
federal court judges,4 including participating in partisan
convenings or fundraisers,' accepting expensive gifts6 or
travel,7 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.9 Congress has also taken notice of the problem.
The For the People Act,10 which was passed in March 2019


by the House of Representatives, included the latest of a
series of proposals by both Republican and Democratic
legislators to clarify the ethical standards that apply to
the justices' behavior.
  Much  of the Supreme Court's power comes from the
public's trust in the integrity and fairness of its members.
Controversies over the justices' ethical choices threaten
this trust at a time when faith in our democratic insti-
tutions is already low.12 In this era of hyperpartisanship,
when confidence in the Supreme Court is imperiled by the
rancor of recent confirmation battles13 and ongoing crit-
icism from the president,14 the Court's decision to adopt
its own ethical reforms would send a clear and powerful
message about the justices' commitment to institutional
integrity and independence. Moreover, voluntarily adopt-
ing a code (rather than waiting for Congress to impose
one) could actually enhance the Court's power by build-
ing the Court's credibility and legitimacy with the public,
thereby earning support for its future decisions.
  This white paper provides a brief overview of the
current judicial ethics framework and highlights three
changes that the Court could adopt right now to bring


Brennan Center for Justice at New York University School of Law


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