Happy New Year, one and all!

And for the United States Supreme Court, here’s a resolution for you: Adopt a code of ethics.

Just about everyone in the legal world has an ethical code, like the Code of Professional Responsibility that guides practitioners. State judges have such codes and all federal jurists (except you-know-who) are bound by the Code of Conduct for United States Judges, which was originally adopted on April 5, 1973.

The ABA had adopted its model code just a year before. The CCUSJ has been amended many times since the 1970s, but it has never included the Supreme Court. In 2011, Chief Justice John Roberts said he and his colleagues could look to many sources, including the CCUSJ and ABA CPR, and thus they did not need a separate ethical code. Since then, he has signaled that he is considering adoption of such a code, and that idea was shared with Congress by Justice Elena Kagan (see ABA Journal, March 8, 2019).

The nation’s top court is bound by the Ethics in Government Act of 1978 – passed after the Watergate scandal – and reporting requirements such as those in 5 USC 7353, which regulate gifts to federal employees.

Chief Justice Roberts had said in the past that, if court members had to recuse themselves or were even removed by impeachment, that could result in tie votes in critical cases. He did not note that self-recusal – which is the method by which justices decide when they should refrain from voting on a case because of conflicts – would obviously produce the same ties.

Presently, there are many ethical situations which should be governed by a code for SCOTUS:  Earning outside income, holding investments in corporations before the court, taking whoopee cruises on the dime of interested litigants, making political speeches, engaging in or tolerating sexual harassment, and misuse of court personnel for private business, for a few examples.

Justices Ruth Bader Ginsberg and Samuel Alito both have made public statements of a highly political nature (RBG about President Donald Trump and Alito at the Federalist Society on Nov. 12 of this year). Justice Antonin Scalia was the guest of corporate magnate John P. Poindexter at his Texas ranch at the time of his death. The reader can examine the financial disclosure statements of the justices, and they would see the lists of investments and range of income from other than their court jobs. Speaking at colleges and book royalties are major sources of outside income.

There is no requirement for blind trusts for justices, even though many have substantial investments in companies.  Those who write books use such publishers as Penguin Random House, which is a gigantic multinational conglomerate owning hundreds of imprints and earning annual revenues of more than $4.5 billion dollars before the acquisition of Simon and Schuster, another printing colossus, last month. Justice Neil Gorsuch earned about $325,000 from Penguin last year for his book “A Republic, If You Can Keep It.”

Yes, there should be an ethics code with teeth for Supreme Court justices. Such an ethics code should include required blind trusts for investments, specific standards for recusals and clear guidance on harassment and exploitation of employees.

Richard Shugrue is a professor emeritus at the Creighton University School of Law and a columnist for The Daily Record.

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