The Supreme Court and Ethics

Question

I have heard talk of creating a code of ethics for the supreme court. Does this mean that no such thing currently exists? What happens if a Supreme Court justice does things that are unethical? Is there a way to punish them?

Answer 1

SCOTUS Justices may be impeached and removed from office and several have had been through various impeachment incidents. The first justice so impeached was associate justice Samuel Chase in 1905 and was aquitted on the charges (Not to be confused with Chief Justice Salmon P. Chase, who was the judge in the first impeachment trial of a U.S. President, Andrew Johnson. The impeachment of Associate Justice Chase occurred three years before Chief Justice Chase was born.).

Associate Justice Robert Wodrow Archbald is the only person to be investigated twice for impeachment for two separate incidents while in the same office. The first, in 1953, when he was investigated for impeachment for issuing a stay of execution for Julius and Ethel Rosenberg while SCOTUS was out of session. The second he was investigated for not recusing himself for conflicts of interest. In both investigations, committee voted to end the investigation without drafting articles of impeachment.

As the Chief Justice of the Supreme Court is only required to act as judge for the trial of Presidents, a SCOTUS Justice Impeachment Trial would likely involve either the Vice President of the United States (acting in his role as President of the Senate) or President pro Tempore of the Senate (acting in his role as seat warmer for the Vice President). In the case of AJ Chase, I could not find documentation as to who sat the trial, but I would suspect given that it is one of the highest office eligible for Impeachment, the Vice President would serve in the role. It would also likely be a full senate jury rather than a senate special commitee jury as is recent custom for all Judicial impeachments (this jury system has been used since 1980s, and with aside from the determination of the President requiring full senate jury, only non-SCOTUS judiciary members have been impeached using this system).

Edit: It should be pointed out that while the being on the Bar (organization that acredits lawyers) is not required of judges, most judges are also lawyers in the United States, especially at the Federal Level (Associate Justice Elana Kagan famously was not a judge but the Solicitor General for the United States (meaning she represented the United States before the Supreme Court in cases they were a party too... which is most of them). The Bar is not under any government authority and because of this is quick to "disbar" its members for ethical problems to avoid government sactions that may be in violation of client rights. Each state and the federal government has a Bar and there is a special one specifically for those arguing cases in the Supreme Court, so a judge can be disbarred over ethical concerns. In the legal world, this won't force the judge from office, but will call any decision into question to such a degree that he'd be quite ineffective.

The appellant system also works to correct lower court's mishandling of cases on issues of law (that is, the judge made a wrong call as to whether the evidence should be allowed, but not that evidence was lead to the wrong conclusion of the jury.) If a judge is doing something illegal during your case, you may file an appeal to determine if the judge's illegal actions impacted your case to a negative outcome (in criminal trials, prosecution cannot make first appeals so if you got off because of the judge's bad ruling, you're still good.). This isn't a sure fire get out of jail card, but it's a method of redress to human foibles affecting your case. While you cannot appeal SCOTUS decisions, they have issued rulings that overturn their previous rulings (Brown v. Board of Ed is a famous instance, and there's a legal debate about whether "Fighting Words" exemptions to Free Speech is overturned, as no case using Fighting Words exemption as justification for a restriction has been upheld in the restrictions favor (the police are certainly going to arrest the person who threw the punch as punching people is against the law, even if they implied your mother enjoys economic benefits from her unusually frequent engagement in sexual activities in addition to the physical pleasure of the event). Obscenity's "I'll know it when I see it" standard is usually a very loose definition to hold that Obscenity is not usually valid, but SCOTUS did rule that laws against Child Pornography are valid and that the content of such is obscene under this standard. Obscenity's actual standards are more technical than I described and usually is determined at the very lowest levels of governance in the United States (usually local level government and community standards, and even then, it's probably smaller than that. Child Pornography is unique in that the Federal Government is able to ban it outright... and the justification of compelling government interest (health and mental and physical safety of the child being photographed) which is not part of the obscenity standard specifically.).

The other method is for the passage of a Constitutional Amendment that overrules a Supreme Court ruling, such as the case of the 14th Amendment overturning Plessy v. Ferguson or the 21st Amendment (the "I need a freaking' drink" amendment) overturning any rulings SCOTUS made on the 18th amendment (I'm not sure there ever was a SCOTUS case on Prohibition, but they would have been overturned by 21.).

Answer 2

hszmv has answered your questions about how we would punish a justice that does something unethical, but they didn't explicitly say whether or not a code of ethics exists.

There is a Code of Conduct for United States Judges that was first adopted on April 5, 1973. However, the code contains the following language to specify which judges the code applies to.

This Code applies to United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges. Certain provisions of this Code apply to special masters and commissioners as indicated in the “Compliance” section. The Tax Court, Court of Appeals for Veterans Claims, and Court of Appeals for the Armed Forces have adopted this Code.

As you can probably tell, the Supreme Court Justices are not included in this and are thus not subject to the code of ethics outlined in the document. As for what the code specifies, it is split up into 5 canons.

1. A Judge Should Uphold the Integrity and Independence of the Judiciary
2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities
3. A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently
4. A Judge May Engage in Extrajudicial Activities That Are Consistent With the Obligations of Judicial Office
5. A Judge Should Refrain From Political Activity

Violation of this code does not necessarily mean that the judge is ousted from the bench. Federal judges are nominated by the president and confirmed by the Senate, and they are subject to impeachment if the Congress decides to remove them from their position. There have been a few cases where a federal judge was convicted of a crime and sentenced to serve time in prison, but they still held their position until the Congress impeached and removed them from the bench. However, for lower courts, there are other actions that can be taken against a federal judge in cases where there is an ethics violation. But the Supreme Court is special, and there are fewer options available for dealing with a justice that commits an ethical violation. The concluding paragraph of this Slate article summarizes the current situation quite well.

Supreme Court justices have life tenure and cannot be subject to sanctions, short of impeachment, so the purpose of a SCOTUS code would not be punishment or even enforcement. Consequently, the For the People Act requires only the promulgation of ethics standards so that the justices can be held accountable for their conduct in the court of public opinion. In the most extreme circumstances, a documented ethics violation could be relevant to a potential impeachment proceeding, as has been the case with lower court judges. But even without such a drastic and improbable situation, there is value in transparency. It is only fair to let the public know what ethics standards we should expect from the nine most powerful judges in the nation.