By: Simon Kelly
The views expressed in this post are those of the author, and do not necessarily reflect the opinions of the Journal, the William H. Bowen School of Law, or UA Little Rock.
Many of us from early on have been taught we need to have a higher standard for those that we elect to be in charge of us. From scandals surrounding President Clinton, to claims of incompetence associated with President Bush, many of our recent leaders have raised some questions about our choices. Should there be an extra set of guidelines in place for those elected to lead? And what about those who are appointed by our elected leaders?
One of the topics covered by the Multistate Professional Responsibility Exam is Judicial Ethics. While the American Bar Association has promulgated Model Rules of Professional Conduct, each state has its own rules that judges must follow. Federal Judges, with 9 exceptions, are bound by the Code of Conduct for United States Judges. https://www.uscourts.gov/sites/default/files/vol02a-ch02_0.pdf. The 9 exceptions are those judges that sit on the Supreme Court of the United States. In fact, there are no ethical rules in place, other than the constitutional provision stating that Supreme Court Justices must exhibit “good behavior,” and that they may be impeached and removed for “treason, bribery, or other high crimes and misdemeanors.” https://constitutioncenter.org/blog/ why-the-supreme-court-isnt-compelled-to-follow-a-conduct-code.
In fact, in 2011, Chief Justice Roberts wrote that Congress did not have the power to impose conduct rules on those justices on the Supreme Court, because the Constitution, not Congress, created the Supreme Court, so it is bound only by the constitutional constraints and restrictions. He believed that it was good to consult the Code but that compliance was voluntary for himself and the other justices.
That is not to say that the Justices have no laws that they must follow. There is a federal financial disclosure law that they must follow, and they must follow the same general principles regarding recusal as other federal judges. Only difference is there is no remedy when a Supreme Court Justices do not remove themselves from a case. The normal remedy for when a judge does not recuse him or herself is an appeal to a higher court. Justice Breyer commented on this quandary, saying that when he cannot decide whether he should participate in a case, he calls a legal ethics professor, but that at the same time he feels a “duty to sit,” regardless of his feelings.
The Supreme Court has in the past imposed ethics rules upon itself. In 1993, seven justices signed an ethics policy called the “Statement of Recusal Policy,” but only two of those justices are still on the Court. Through the statement, the justices pledged to recuse themselves from cases involving legal firms where their relatives worked. https://www.nbcnews.com/news/us-news/why-don-t-supreme-court-justices-have-ethics-code-n745236. The two that remain on the court are Justices Ginsburg and Thomas, which means that the other seven sitting justices have not publicly bound themselves to this ethical policy.
Yet despite there being no set rules for the Supreme Court, only one justice has ever been impeached. Justice Samuel Chase was impeached in 1804 by the House on grounds that he allowed his partisan leaning to affect his court decisions but was acquitted by the Senate. He was never removed from his seat on the Court. https://www.jstor.org/stable/1098896?origin=crossref&seq=1#metadata_info_tab_ contents. This means that no member of the Supreme Court has ever successfully been impeached and removed from the bench, and the only and last attempt was against one of the signers of the Declaration of Independence.
This was seen as unofficial precedent set by the legislature. As Chief Justice Rehnquist lays out in his book, “Grand Inquests,” several senators declined to convict Justice Chase because they believed that judicial performance was not a ground for removal and that there must be a legal or ethical violation to justify removal. However, as there are no real ethical constraints on Supreme Court Justices, the only means for impeachment and removal of a sitting member of the Court is a legal violation, which would be those that the Constitution calls “high crimes.” In the time that the Constitution was written, “high crimes” meant crimes that could not be committed by ordinary persons, but by someone in a unique position of authority. http://constitution.org/ cmt/high_crimes.htm.
Following that original interpretation would mean that there are very few laws that a justice of the Supreme Court could break that could lead to impeachment, almost as if the justices are above the law.