This is a rarity: genuine breaking ethics news. The U.S. Supreme Court just released a SCOTUS code of conduct, signed by all nine justices. I have already read that the code “largely follows an existing code for other federal judges.” That code is here. I disagree. The new SCOTUS Code is significantly more detailed, with special emphasis on family conflicts (no doubt prompted by the criticism of Justice Thomas’s wife, a conservative activist.)  I find it fascinating, after decades of arguing that the general precepts of judicial ethics were to be presumed in the very core of our nation’s most powerful judges, when they finally codified their ethics, it yielded the most specific and extensive judicial ethics requirements in existence.

I want to flag two important features. First, the word used in all of the five Canons is “should,” not “shall.”  That makes these best practice guidelines, but not absolute requirements. Second, the code does not include any mechanism for enforcement, discipline, or public oversight. Presumably the Court is still  entirely self-policing.

Here is what was released today; I apologize for the funky formatting. WordPress made a lot of strange changes when I copied and pasted, and I had the patience to fix only the worst of them…

SUPREME COURT OF THE UNITED STATES

Statement of the Court Regarding the Code of Conduct

The undersigned Justices are promulgating this Code of Conduct to set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the Members of the Court. For the most part these rules and principles are not new: The Court has long had the equivalent of common law ethics rules, that is, a body of rules derived from a variety of sources, including statutory provisions, the code that applies to other members of the federal judiciary, ethics advisory opinions issued by the Judicial Conference Committee on Codes of Conduct, and historic practice. The absence of a Code, however, has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules. To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct.

NOVEMBER 13, 2023

Code of Conduct for Justices of the Supreme Court of the United States

Canon 1: A Justice Should Uphold the Integrity and Independence of the Judiciary.

A Justice of the Supreme Court of the United States should maintain and observe high standards of conduct in order to preserve the integrity and independence of the federal judiciary.

Canon 2: A Justice Should Avoid Impropriety and the Appearance of Impropriety in All Activities.

1. RESPECT FOR LAW. A Justice should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
2. OUTSIDE INFLUENCE. A Justice should not allow family, social, political, financial, or other relationships to influence official conduct or judgment. A Justice should neither knowingly lend the prestige of the judicial office to advance the private interests of the Justice or others nor knowingly convey or permit others to convey the impression that they are in a special position to influence the Justice. A Justice should not testify voluntarily as a character witness.
3. NONDISCRIMINATORY MEMBERSHIP. A Justice should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.

Canon 3: A Justice Should Perform the Duties of Office Fairly, Impartially, and Diligently.

A. RESPONSIBILITIES. A Justice should not be swayed by partisan interests, public clamor, or fear of criticism. A Justice should participate in matters assigned, unless disqualified, and should maintain order and decorum in judicial proceedings. A Justice should be patient, dignified, respectful, and courteous to all individuals with whom the Justice deals in an official A Justice should not engage in behavior that is harassing, abusive, prejudiced, or biased. A Justice should not retaliate against those who report misconduct. A Justice should require similar conduct by those subject to the Justice’s control. A Justice should take appropriate action upon receipt of reliable information indicating the likelihood of misconduct by a Court employee. Except as provided by law or Court rule, a Justice should not initiate, permit, or consider ex parte communications or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers. If a Justice receives an unauthorized ex parte communication bearing on the substance of the matter, the Justice should promptly notify the parties of the subject matter of the communication and allow the parties to respond. A Justice should not knowingly make public comment on the merits of a matter pending or impending in any court. The prohibition on public comment on the merits of a matter does not extend to public statements made in the course of the Justice’s official duties. For scholarly, informational, or educational purposes, a Justice may describe the issues in a pending or impending case. A Justice should require similar restraint by Court personnel subject to the Justice’s control. A Justice should not direct Court personnel to engage in conduct on the Justice’s behalf or as the Justice’s representative when that conduct would contravene the Canons if undertaken by the Justice.

B. DISQUALIFICATION

1. A Justice is presumed impartial and has an obligation to sit unless disqualified.
2. A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her. Such instances include, but are not limited to, those in which:
   • The Justice has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
   • At a prior stage of the proceeding, the Justice represented a party, or a lawyer with whom the Justice previously practiced law served during such association as a lawyer for a party, or the Justice or lawyer has been a material witness in the proceeding;
   • The Justice knows that the Justice, individually or as a fiduciary, or the Justice’s spouse or minor child residing in the Justice’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding;
   • The Justice or the Justice’s spouse, or a person related to either within the third degree of relationship, or the spouse of such person, is known by the Justice: (i) to be a party to the proceeding, or an officer, director, or trustee of a party; (ii)The Justice’s spouse or a person related to the Justice or the Justice’s spouse within the third degree of relationship, or the spouse of such person, is known by the Justice: (iii) to have served as lead counsel for a party below; or (iv.) to be an equity partner in a law firm that appears before the Court on behalf of a party to the proceeding and the Court has not received written assurance that the income from Supreme Court litigation is permanently excluded from the person’s compensation.

3. The rule of necessity may override the rule of disqualification.

4. Neither the filing of a brief amicus curiae nor the participation of counsel for amicus curiae requires a Justice’s disqualification.

5. A Justice should keep informed about the Justice’s personal and fiduciary financial interests and make a reasonable effort to keep informed about the personal financial interests of the Justice’s spouse and minor children residing in the Justice’s household.

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6. For the purposes of this section:

• • The degree of relationship is calculated according to the civil law system; the following relatives are within the third degree of relationship: parent, child, grandparent, grandchild, great grandparent, great grandchild, sister, brother, aunt, uncle, niece, and nephew; the listed relatives include whole and half blood relatives and most step relatives;
  • “fiduciary” includes such relationships as executor, administrator, trustee, and guardian;
  • “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, advisor, or other active participant in the affairs of a party, except that:
    • Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund;
    • An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;
    • The proprietary interest of a policyholder in a mutual insurance company, or a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
    • Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the “proceeding” includes pretrial, trial, appellate review, or other stages of litigation.

7. Notwithstanding the preceding provisions of this Canon, if a Justice would be disqualified because of a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the Justice (or the Justice’s spouse or minor child) divests the interest that provides the grounds for disqualification.

Canon 4:    A Justice May Engage in Extrajudicial Activities that Are Consistent with the Obligations of the Judicial Office.

A Justice may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and government activities, and may speak, write, lecture, and teach on both law-related and nonlegal subjects. However, a Justice should not participate in extrajudicial activities that detract from the dignity of the Justice’s office, interfere with the performance of the Justice’s official duties, reflect adversely on the Justice’s impartiality, lead to frequent disqualification, or violate the limitations set forth below.

A. Law-Related

• Speaking, Writing, and Teaching. A Justice may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, or the administration of justice subject to the following limitations and considerations:
• A Justice should not speak at an event sponsored by or associated with a political party or a campaign for political office.
• A Justice should not speak at or otherwise participate in an event that promotes a commercial product or service, except that a Justice may attend and speak at an event where the Justice’s books are available for purchase.
• A Justice should not speak to or participate in a meeting organized by a group if the Justice knows that the group has a substantial financial interest in the outcome of a case that is before the Court or is likely to come before the Court in the near future.
• A Justice may attend a “fundraising event” of law- related or other nonprofit organizations, but a Justice should not knowingly be a speaker, a guest of honor, or featured on the program of such event. In general, an event is a “fundraising event” if proceeds from the event exceed its costs or if donations are solicited in connection with the event.
• In deciding whether to speak or appear before any group, a Justice should consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public. Except in unusual circumstances, no such appearance will be created when a Justice speaks to a group of students or any other group associated with an educational institution, a bar group, a religious group, or a non-partisan scholarly or cultural group.

1.) Consultation: A Justice may consult with or appear at a public hearing before an executive or legislative body or official: (a) on matters concerning the law, the legal system, or the administration of justice; (b) to the extent it would generally be perceived that a Justice’s judicial experience provides special expertise in the area; or (c) when the Justice is acting pro se in a matter involving the Justice or the Justice’s interest.

2.) Organizations A Justice may participate in and serve as a member, officer, director, trustee, or nonlegal advisor of a nonprofit organization devoted to the law, the legal system, or the administration of justice and may assist such an organization in the management and investment of funds. A Justice may make recommendations to public and private fund-granting agencies about projects and programs concerning the law, the legal system, and the administration of justice.

3.) Arbitration and Mediation. A Justice should not act as an arbitrator or mediator or otherwise perform judicial functions apart from the Justice’s official duties unless authorized by law.

4.) Practice of Law. A Justice should not practice law and should not serve as a family member’s lawyer in any A Justice may, however, act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the Justice’s family.

B. CIVIC AND CHARITABLE ACTIVITIES. A Justice may participate in and serve as an officer, director, trustee, or nonlegal advisor of a nonprofit civic, charitable, educational, religious, or social organization, subject to the following limitations:

• • A Justice should not serve if it is likely that the organization will either be engaged in proceedings that would ordinarily come before the Justice or be regularly engaged in adversary proceedings in any court.
  • A Justice should not give investment advice to such an organization but may serve on its board of directors or trustees even though it has the responsibility for approving investment decisions.

C. FUNDRAISING. A Justice may assist nonprofit law-related, civic, charitable, educational, religious, or social organizations in planning fundraising activities and may be listed as an officer, director, or Use of a Justice’s name, position in the organization, and judicial designation on an organization’s letter head, including when used for fundraising or soliciting members, is permissible if comparable information and designations are listed for others. Otherwise, a Justice should not personally participate in fundraising activities, solicit funds for any organization, or use or knowingly permit the use of the prestige of judicial office for that purpose. A Justice should not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or is essentially a fundraising mechanism.

D. FINANCIAL ACTIVITIES

1. A Justice may hold and manage investments, including real estate and engage in other remunerative activity, but should refrain from financial and business dealings that exploit the judicial position or involve the Justice in frequent transactions or continuing business relationships with lawyers likely to appear before the Court or other persons likely to come before the Court.
2. A Justice may serve as an officer, director, active partner, manager, advisor, or employee of a business only if the business is closely held and controlled by members of the Justice’s family. For this purpose, “members of the Justice’s family” means persons related to the Justice or the Justice’s spouse within the third degree of relationship as defined in Canon 3B(6)(a), any other relative with whom the Justice or the Justice’s spouse maintains a close familial relationship, and the spouse of any of the foregoing.
3. A Justice should comply with the restrictions on acceptance of gifts and the prohibition on solicitation of gifts set forth in the Judicial Conference Regulations on Gifts now in effect. A Justice should endeavor to prevent any member of the Justice’s family residing in the household from soliciting or accepting a gift except to the extent that a Justice would be permitted to do so by the Judicial Conference Gift Regulations. A “member of the Justice’s family” means any relative of a Justice by blood, adoption, or marriage, or any person treated by a Justice as a member of the Justice’s family.
4. A Justice should not disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the Justice’s official duties.

E. FIDUCIARY ACTIVITIES. A Justice may serve as the executor, administrator, trustee, guardian, or other fiduciary only for the estate, trust, or person of a member of the Justice’s family as defined in Canon 4D(3). As a family fiduciary a Justice is subject to the following restrictions:

1. The Justice should not serve if it is likely that as a fiduciary the Justice would be engaged in proceedings that would ordinarily come before the Justice or if the estate, trust, or ward becomes involved in adversary proceedings before the Court or in a court under the Court’s jurisdiction.
2. While acting as a fiduciary, a Justice is subject to the same restrictions on financial activities that apply to a Justice in a personal capacity.

F. GOVERNMENTAL APPOINTMENTS. A Justice may accept appointment to a governmental committee, commission, or other position only if it is one that concerns the law, the legal system, or the administration of justice, or if appointment of a Justice is authorized by federal law. A Justice should not, in any event, accept such an appointment if the Justice’s governmental duties would tend to undermine public confidence in the integrity, impartiality, or independence of the judiciary. A Justice may participate in national, state, or local ceremonial occasions or in connection with historical, educational, and cultural activities.

G. CHAMBERS, RESOURCES, AND STAFF. A Justice should not to any substantial degree use judicial chambers, resources, or staff to engage in activities that do not materially support official functions or other activities permitted under these Canons.

H. Compensation, Reimbursement, Financial Reporting  A Justice may accept reasonable compensation and reimbursement of expenses for permitted activities if the source of the payments does not give the appearance of influencing the Justice’s official duties or otherwise appear improper. Expense reimbursement should be limited to the actual or reasonably estimated costs of travel, food, and lodging reasonably incurred by the Justice and, where appropriate to the occasion, by the Justice’s spouse or relative. For some time, all Justices have agreed to comply with the statute governing financial disclosure, and the undersigned Members of the Court each individually reaffirm that commitment.

Canon 5: A Justice Should Refrain from Political Activity.

A Justice should not: (1) act as a leader or hold any office in a political organization; (2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office; or (3) solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate. A Justice should resign the judicial office if he or she becomes a candidate in a primary or general election for any office. A Justice should not engage in other political activity. This provision does not prevent a Justice from engaging in activities described in Canon 4.

The undersigned Members of the Court subscribe to this Code and the accompanying Commentary.

John G. Roberts, Jr., Clarence Thomas, Samuel A. Alito, Jr., Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett, Ketanji Brown Jackson

NOVEMBER 13, 2023

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