Student Opinion: The Supreme Court’s Code of Conduct

By Miu Kikuchi

LOS ANGELES- The Supreme Court of the United States is composed of nine Justices; together, they have the power to rule over which laws are deemed constitutional. 

There is often a discrepancy between how each Justice rules, affecting the decisions they collectively come to. This discrepancy is partially rooted in the fact that each Justice has discretion over practicing judicial restraint or judicial activism. A Justice who practices judicial restraint will rule strictly based on the U.S. Constitution — written in 1787 — even if some of its ideas are outdated; this tends to be a more conservative approach to ruling. On the other hand, a Justice who practices judicial activism will rule by their own interpretation of the U.S. Constitution, which may well be influenced by the context of modern times; this tends to be a more progressive approach to ruling. Though these two types of ruling can influence how the nine judges rule, this is a natural difference that should not raise much concern.

However, not all factors that influence a Justice’s decision can be dismissed. Under the Ethics in Government Act, Supreme Court Justices are required to submit an annual report of their “income, dividends, most capital gains, significant debts, the purchase or sale of land, and gifts, among other things.” There is an exception to this, though, called the “Personal Hospitality Clause” where if a gift is given to a Justice out of sheer hospitality from another individual, it does not have to be disclosed in the annual report. Numerous Justices have abused this loophole, allowing for their rulings to be influenced by outside factors. Justice Clarence Thomas is a notorious example of this, as he has received exorbitant gifts such as private school tuition money for his nephew, private jet trips, yachts, and his mother’s house in Georgia, all from a real estate agent, Harlan Crow. Justice Thomas’s failure to disclose most of these in his annual report has put him in the spotlight, contributing to a general public image that Supreme Court Justices are “unrestricted by ethics rules.”

To refute this reputation, the Supreme Court issued a Code of Conduct on November 13, 2023, which states that the Justices should act with integrity and impartiality, not being swayed by outside influences such as “family, social, political, financial, or other relationships”. However, there are a few issues with this document. 

First, it is a bit dissatisfying because the main reason for the creation of this document is to rebut public misconceptions about the Court, not necessarily because the Justices collectively decided to ameliorate their system. If they thought that changes were necessary and viewed past scandals as unethical, they likely would not have let outside influences affect their decisions in the first place. 

Second, the document is extremely broad and there is no clear method of enforcing these rules. Something that is explicitly stated is that Justices should recuse themselves when they are ruling with personal motivation. Not only is it naive to believe that a Justice would willingly admit their failure in rightfully serving their country and relinquish their revered position, but motivations are difficult to prove especially if they do not have tangible evidence tied to them. 

Furthermore, the conduct advises against recusals because having only eight judges can negatively affect the flow of decision-making in the courtroom. However, just because Justices typically do not get replaced due to life-long tenure, it does not mean it is impossible. The President of the United States holds the Constitutional authority to appoint new judges with Senate approval. The Court being adamant about their uncooperative stance on recusals essentially prioritizes convenience over morality. It is possible that some cases may have to be put on hold while the President and Senate agree on a new Justice, but is that not better than having countless more cases ruled upon by Judges who may not be fairly considering both sides? 

Being a Supreme Court Justice is not the same thing as being a judge of a trivial conflict between friends. Their opinions and decisions affect the lives of nearly 340 million citizens in the United States. The magnitude of their responsibility is one of the greatest in the country and anything that may jeopardize their ability to properly do their job should be scrutinized. 

Though this document does make a step towards progress, there needs to be a clearer method of enforcing the rules that this Code of Conduct establishes. Without it, it will not hold anyone accountable.