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cials to file annual reports in which they publicly disclose certain aspects of their finances, including their outside income, the employment of their spouses and dependent children, investments, reim- bursements for travel-related costs, gifts, and household liabilities.24
On the other hand, the Ethics Reform Act of 1989 imposes strict limits on outside earned income and gifts for all federal offi- cials, including federal judges.25 Under the Act, justices are prohibited from most outside employment, with the exception of teaching.26 Additionally, justices may not accept honoraria for an appearance, speech, or article, though reimbursement for travel expenses is permitted.27 Finally, the Act bars judges and justices from receiving gifts from anyone whose “inter- ests may be substantially affected by” the performance of their duties.28
The idea of an ethical code for the Supreme Court has been discussed for years, including by the Court itself. For example, in testimony before a Senate Committee in 2019, Justice Kagan indi- cated that “the Chief Justice is studying the question of whether to have a code of judicial conduct that is applicable only
to the United States Supreme Court.”29 The Court has now issued that code of conduct, stating:
For the most part these rules and prin- ciples 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 stat- utory provisions, the code that applies to other members of the federal judi- ciary, 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 them- selves 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.30
The historical significance of the adoption of the new code was certainly acknowledged by many. For example, J. Michael Luttig, a well-regarded former federal appellate judge, praised the move, stating that “[t]he Supreme Court’s prom- ulgation of a code of conduct today is of
surpassing historic significance... The court must lead by the example that only it can set for the federal judiciary, as it does today.”31 Others were skeptical of the new code due to its lack of any formal enforce- ment mechanism. Stephen Vladeck, a law professor at the University of Texas who studies the Court, indicated that [e]ven the most stringent and aggressive ethics rules don’t mean all that much if there’s no mechanism for enforcing them. And the justices’ unwillingness to even nod toward that difficulty kicks the ball squarely back into Congress’ court.”32
The new code itself contains five ethical canons. Each canon is accom- panied by notes expanding upon the meaning and application of the individual canon. The notes accompanying canons 1 and 2 explain that each justice should “maintain and observe high standards of conduct” and “should not allow family, social, political, financial, or other rela- tionships to influence official conduct or judgment.”34 As explained in the notes to canon 3, it is intended to govern disqual- ifications, articulating the circumstances in which justices should recuse themselves from participating in cases where their
THE REPORT | January/February 2024 | CincyBar.org
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