Presidential Commission on the Supreme Court of the United States
Relatedly, though the Justices are subject to statutory standards that require recusal in specified situations, unlike recusal decisions by lower court judges, the Justices’ recusal decisions are not subject to further review.
This section discusses potential benefits and drawbacks of reforms that would impose a code of conduct, a disciplinary framework, or recusal review.
A. Code of Conduct
A code of conduct for the Court would bring the Court into line with the lower federal courts and demonstrate its dedication to an ethical culture, beyond existing statements that the Justices voluntarily consult the Code. In other contexts, such a demonstration of commitment has affected conduct over time, in part by encouraging periodic training and other similar techniques that enhance attention to ethical concerns.[126]
There are two paths to a code of conduct for the Supreme Court: The Court could internally adopt a code, or Congress could externally impose a code upon the Court. In either case, the code could mirror the one that applies to other federal judges or could be specific to the Supreme Court.
1. Internal Adoption of a Code
The Court could formally adopt the Code of Conduct that already applies to other Article III federal judges. It has adopted similar non-binding regulations in the past: In 1991, the Court formally adopted ethical regulations enacted by the Judicial Conference under the Ethics Reform Act of 1989.[127] Those regulations now govern the Justices’ ability to receive gifts, honoraria, and outside income, and they require the Justices to make periodic financial disclosures. Adopting the current Code could be done quickly. Furthermore, the Justices’ ethical obligations would then parallel those of the rest of the federal judiciary. The Code comprises, for the most part, broadly stated aspirational principles. Were the current Code to apply to the Justices, it might not be necessary to amend the actual language of the Code,[128] although the opinion letters interpreting the Code in the context of particular situations involving lower court judges might not be directly applicable to the Justices.
As an alternative to adopting the current Code, the Court could create its own code. In a 2019 appropriations hearing, Justice Kagan stated that the Chief Justice was “studying” the question of whether to adopt a code applicable only to the Supreme Court.[129] In that same hearing, Justice Alito was asked why the current Code of Conduct does not apply to the
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