Veronica Root Martinez (Duke University School of Law) has posted Supreme Impropriety? Questions of Goodness and Power (Law and Contemporary Problems, 2024) on SSRN. Here is the abstract:
On November 13, 2023, for the first time in history, the justices of the United States Supreme Court formally adopted a code of conduct. The adoption of the code occurred after over a decade of calls to do so from policymakers, members of Congress, academics, and the public. The new code of conduct, however, was immediately critiqued as being inadequate, insufficient, and imprecise. After so many pleas for the Court to adopt an ethics code, and it having finally done so, some may find surprising that the enacted code has been so quickly critiqued by the very people who asked the Court to take action. These debates, however, were never about a code.
Underneath all of the arguments—and there have been many—about the Supreme Court and its lack of an ethics code have been concerns about goodness and power. The goodness concerns, at least in part, appear to be related to how the public—and Congress—would know whether the justices are conducting themselves in a manner that befits the office they hold. The power concerns, at least in part, appear to be rooted in the reality that for the public to verify that the justices’ actions align with goodness, the justices would have to relinquish some of their own, individual power. The justices would have to agree to submit. To submit to a code. To submit to a Congressional inquiry or mandate. To submit to the other members of the Court. To submit to someone or something other than themselves. And the reality is that asking a powerful person to give up some of their power is almost always a fraught endeavor.
This Article argues that the current controversies surrounding the ethics of Supreme Court justices will not be satisfied unless and until there is a mechanism in place for the public to objectively assess the goodness of the justices’ actions and conduct. Assessments of this nature are not unprecedented. Indeed, scholars and the legal profession have traditionally used a range of tools to determine whether a professional’s conduct should be deemed permissible—even when a formal code of conduct is not in place—and these tools may be instructive in the current debates. Ultimately, this Article argues that an intervention needs to be adopted that will provide guidance on whether current or contemplated conduct by a Supreme Court Justice complies with formal (legal) or traditional (standards or norms) notions of judicial ethics. This Article proposes one such intervention, but there could be others. The key is that the methods for evaluating the justices conduct are (i) objective, clear and precise; (ii) free from ideological taint; and (iii) consistently replicable across new permutations of potential misconduct.