The US Supreme Court does not want or need an enforceable code of ethics. As I listen to the reasons given by some members of the Supreme Court to support this position, the words sound strikingly familiar. I have heard the same reasons given by judges in several developing democracies, mostly post-communist countries in Central and Eastern Europe.
I have taught and written about lawyer and judge ethics at US law schools for forty years. More importantly for my present point is that for the past twenty years, I have been working hands-on with lawyers, judges, and prosecutors outside the US on justice projects, mostly funded by USAID and US Embassies, to build justice capacities in the legal professions of emerging democracies. I have specifically worked with judges on their codes of ethics and disciplinary systems in Slovakia, the Czech Republic, Kosovo, the Republic of Georgia, North Macedonia, Indonesia, Ukraine, and elsewhere.
The United States spends considerably to foster ethical development of the judiciaries of these countries, and of others where I have not had the privilege of working. And it should: such spending is wisely aimed at raising the quality of justice experienced by the people of our friends and allies. Doing so enhances our friendship, benefits those who live and work in the affected countries, and enhances the environment for business investment abroad.
If asked, many (perhaps most) Americans including American lawyers and judges would say that justice development is sorely needed in the countries where I have worked in order to fight against deeply-rooted corruption. Indeed, whether correctly or not, judges in these countries are the target of ridicule by the American public. And not only by the American public: the US State Department recently and justifiably sanctioned four powerful judges from Republic of Georgia for their involvement in deeply corrupt practices and systems.
Although I am a realist about the many flaws and challenges of the US justice system, in my work, American judges and courts are held up as exemplars in many respects. A standard feature of the kind of project on which I work is the study-visit, which allows judges, lawyers, and other public officials from the target country to visit American courts, meet American judges, and watch a world-class justice system in action. The American judges are held up as role-models that their guests should emulate. To be sure, we can say to the visitors that one distinctive feature of American judges is that all but nine of them are bound by an enforceable code of ethics.
In one disturbing respect, however, the similarity between judges in the countries where I have worked and US Supreme Court Justices is striking. As I have worked to persuade judges in developing democracies to adopt an enforceable code of conduct and a fair, well-administered disciplinary system, a significant number of them respond that they do not need such a code of conduct and indeed, such a code would cheapen their professionalism and the honor of their position. They insist that good conduct, or ethical conduct, comes from inside the heart of a judge and not from following rules. They insist that the system should choose wisely when appointing a judge, and trust, without the need of written rules for the judge to follow, that such a well-chosen judge will further the public interest and not his or her own, will recognize conflicts of interest and avoid them assiduously, will be always devoted to the law and to justice. In short, a judge will be a good judge and needs no rules to follow in order to ensure that. All judges, they would say, as Justice Roberts has said of the Justices, “seek to follow high ethical standards” without the necessity of enforceable rules. Judges, they insist, as does Justice Roberts, “consult” various sources of “guidance” in making ethical decisions, such as the code of ethics that is binding on all other federal judges.
They further insist that an enforceable code of conduct spoils their goodness. If a judge must follow rules to avoid consequences, then the judge is not being purely good, as would be the situation if a judge was not bound by any rules and voluntarily remained focused always on the public good and not their own. We have been repeatedly told that Justice Thomas has broken no enforceable rules in failing to report the largesse of various benefactors, but are left wondering if this really means he is purely good.
Implicitly, the judges with whom I have worked who resist the notion that they should have an enforceable code of ethics are claiming to be better than other public officials. They should be governed by conduct rules; We judges need not have written rules to follow. The US Supreme Court Justices say even more: they assert superiority not only above other public officials, but above all other judges whether state or federal. With heads held high and chests puffed out, their claims of superiority are visible for all to mock and ridicule. Yet, they appear not to notice they are being mocked and ridiculed. Justice Alito has publicly expressed his dismay that the Justices are being treated so unfairly much of the time. And with every instance of their excuses’ expression, public trust falls.
To be sure, as Justice Roberts has correctly and repeatedly reminded us, Supreme Court Justices are not the same as other federal judges. Article III only established the Supreme Court, leaving it to Congress to establish lower federal courts; the Supreme Court is the court of last resort with no other court waiting to review its judgments; and unlike lower-level federal judges, a Justice cannot easily be subbed out for a replacement in case of recusal in a given case. Several Supreme Court of Indonesia judges said almost exactly the same things to me when explaining why the code of ethics for judges in Indonesia applies to all lower court judges but not to them. Their reasoning was flawed in the same way that Justice Roberts’ is. My answer to the Indonesian Supreme Court judges, which they did not like, was that these differences between their situation and that of other judges does not mean there should be no code governing them, but simply that a code of ethics governing them would have to be drafted differently in some respects from the one that governs all other judges. I would say the same to our Court. And I suspect the reaction would be about the same.
Public trust is public trust, in the US, in Slovakia, in Indonesia, or elsewhere. Courts cannot effectively function without it. People do not trust those who refuse to be governed by reasonable rules.
Members of the US Supreme Court are emulating the foreign judges who are the most derogated and ridiculed by Americans in and out of the legal profession. Before public trust in it is irretrievably lost, the Court must step forward and restore its worthiness of emulation by judges worldwide.
James Moliterno is the Vincent Bradford Professor of Law at Washington and Lee University. For forty years, he has taught lawyer and judicial ethics at five US law schools and written or co-written ten books and numerous articles on the subject. For more than twenty years, he has engaged in justice-building work in developing democracies.
Suggested citation: James Moliterno, US Supreme Court Aversion to Enforceable Ethics Code Reflects Sense of Superiority, Erodes Public Trust, JURIST – Academic Commentary, July 19, 2023, https://www.jurist.org/commentary/2023/07/US-Supreme-Court-ethics/.
This article was prepared for publication by JURIST Commentary staff. Please direct any questions or comments to them at commentary@jurist.org
