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impartiality might reasonably be ques- tioned.35 According to the notes, canon 4 is intended to allow justices to speak, write, and teach about the law and engage in other extrajudicial activities, subject to certain limitations.36 Canon 5 provides that justices should not engage in polit- ical activities, such as holding a leadership role in a political organization, endorsing candidates for political office, political fundraising, making campaign contribu- tions, and running for elected office.37
While the canons of the newly adopted justices’ Code of Conduct are nearly iden- tical to the judges’ Code of Conduct that applies to the lower federal courts, they have different explanatory notes. This will, no doubt, impact the way in which they are applied in practice. One critical distinction between the two codes is the express recognition in the justices’ “duty to sit,” an obligation to participate in cases unless disqualified. This duty to sit reflects a fundamental difference between the Supreme Court and the lower federal courts. In the lower courts, when a judge must recuse, another judge may step in to take that judge’s place. For the Supreme Court, on the other hand, no current law allows a substitute judge to hear a case in the place of a recused justice. Thus, a situ- ation can arise where the Court would be left an even number of justices to decide a case, increasing the chance that the Court could be locked in a tie vote and unable to render a clear decision.
Only time will tell whether the adop- tion of this new Code of Conduct will impact how the justices go about their work or change the eroding public trust in the Court’s decision. As Chief Justice Roberts said in his 2011 Report, “Judges need and welcome guidance on their ethical responsibilities, . . . But at the end of the day, no compilation of ethical rules can guarantee integrity. Judges must exer- cise both constant vigilance and good judgment to fulfill the obligations they have all taken since the beginning of the Republic.”38
Professor Harrison currently holds the David and Nancy Wolf Chair in Ethics and Professional Identity at Northern Kentucky University Salmon P. Chase College of Law. Professor Harrison currently teaches Civil Procedure, Torts, Professional Responsibility, Remedies, and Sexuality, Identity, and the Law.
1 Statement of the Supreme Court regarding the Code of Conduct for justices of the Supreme Court of the United States, issued November 13, 2023.
2 Jeffrey M. Jones, Supreme Court Approval Holds at Record Low, Gallup,August 2, 2023, https://news.gallup.com/ poll/509234/supreme-court-approval-holds-record-low. aspx#:~:text=Line%20graph.,a%2042%25%20read- ing%20in%202005
3 Jeffrey M. Jones, Supreme Court Trust, Job Approval at Historical Lows, Gallup, October 6, 2022, https://news. gallup.com/poll/402044/supreme-court-trust-job-ap- proval-historical-lows.aspx
4 Id.
5 I take no position on the merits of any allegations of unethical conduct by any particular justice, primarily because some of the facts underlying these allegations are in dispute.The allegations are noted here only to indicate how these discussions have shaped public perception of the Court and of the perceived need for the Court to respond in some manner.
6 Joshua Kaplan, Justin Elliott and Alex Mierjeski, Clarence Thomas and the Billionaire, Prp Publica, April 6, 2023, https://www.propublica.org/article/clarence-thom- as-scotus-undisclosed-luxury-travel-gifts-crow. See
also, Jeff Shesol, Op-Ed, Should the Justices Keep their Opinions to Themselves?, N.Y.TIMES, Jun. 28, 2011, at A23 (describing Justice Alito’s attendance at the American Spectator’s fund-raising dinner, where he had previously given the keynote address, and Justices Thomas’s and Scalia’s attendance at political strategy meetings hosted by the conservative Koch brothers)
7 Steven Lubet, One More Reason Why the Court Needs a Code, Prospect, July 28, 2023, https://prospect.org/ justice/2023-07-18-supreme-court-ethics-code-soto- mayor/
8 Jessica Schneider and Tierney Sneed, Justice Neil Gorsuch’s Property Sale to Prominent Lawyer Raises More Ethical Questions, CNN,April 25, 2023, https://www.cnn. com/2023/04/25/politics/gorsuch-property-sale-law- yer-ethics/index.html
9 Cheney, 541 U.S. at 916, 923 (Scalia, J., mem.).
10 See, e.g., Jeffrey Toobin, Partners, NEW YORKER,Aug. 29, 2011, at 41; Editorial, The Supreme Court’s Recusal Problem,N.Y.TIMES,Dec.1,2011,atA38.
11 Chief Justice John Roberts, 2011 Year-End Report on the Federal Judiciary, December 31, 2011.
12 Id.
13 Id.
14 David B. Rivkin Jr. and James Taranto, Samuel Alito, the Su- preme Court’s Plain-Spoken Defender,Wall Street Journal, July 28, 2023, https://www.wsj.com/articles/samuel-ali- to-the-supreme-courts-plain-spoken-defender-prece- dent-ethics-originalism-5e3e9a7?st=yaf444fmb8q9vd1
15 Judge Jeremy Fogel and Noah Bookbinder, Building Pub- lic Confidence: How the Supreme Court Can Demonstrate Its Commitment to the Highest Ethical Standards, CREW Report,August 9, 2023, https://www.citizensforethics. org/reports-investigations/crew-reports/building-pub- lic-confidence-how-the-supreme-court-can-demon- strate-its-commitment-to-the-highest-ethical-stan- dards/#:~:text=Public%20confidence%20in%20the%20 judiciary,both%20professional%20and%20personal%20 conduct
16 Id.
17 Act of May 8, 1792, ch. 36, § 11, 1 Stat. 278–79 (1792). See also Amanda Frost, Judicial Ethics and Supreme Court Exceptionalism, 26 Georgetown Journal of Legal Ethics (2013).Available at: https://digitalcommons.wcl. american.edu/facsch_lawrev/1380
18 Id.
19 Id.
20 Act of June 25, 1948, ch. 646, § 455, 62 Stat. 869, 908 (codified as amended at 28 U.S.C. § 455 (1992)).
21 Amanda Frost, Judicial Ethics and Supreme Court Excep- tionalism, 26 Georgetown Journal of Legal Ethics (2013). Available at: https://digitalcommons.wcl.american.edu/ facsch_lawrev/1380
22 Id.
23 Id.
24 5 U.S.C. app. 4, § 102 (2012).
25 Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824 (codified as amended at 5 U.S.C. app. 7 § 502(a)(5).)
26 Id.
27 Id.
28 5 U.S.C. § 7353(a)(2) (2011).
29 Steven Lubet, The Supreme Court’s New Attempt to Combat Its Scandals Is Not Going Well, Slate, November 14, 2023, https://slate.com/news-and-politics/2023/11/ supreme-court-ethics-rules-clarence-thomas-rv.html
30 Statement of the Supreme Court regarding the Code of Conduct for justices of the Supreme Court of the United States, issued November 13, 2023.
31 Joshua Kaplan, Justin Elliott, Brett Murphy and Alex Mierjeski, The Supreme Court Has Adopted a Conduct Code, but Who Will Enforce It?, Nov. 13, 2023, https:// www.propublica.org/article/supreme-court-adopts-eth- ics-code-scotus-thomas-alito-crow
32 Id.
33 Code of Conduct for justices of the Supreme Court of
the United States, issued November 13, 2023. 34 Id.
35 Id. 36 Id. 37 Id.
38 Chief Justice John Roberts, 2011 Year-End Report on the Federal Judiciary, December 31, 2011.
ETHICAL QUANDARY?
The CBA is proud to offer ethical guidance to Greater Cincinnati attorneys through our Ethics Committee's hotline.
January
Richard A. Magnus 513-731-2889 Michael R. Schmidt 513-708-3900 Theresa Bryans 614-906-5551
February
Samuel M. Duran 513-357-9378 Jon Sinclair 513-621-3200
The members of the CBA Ethics & Professional Responsibility Committee listed above are available
to help you interpret your obligations under the Ohio Rules of Professional Conduct. Questions posed should be framed hypothetically and should relate to your own prospective conduct. The committee also accepts requests for written opinions.
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THE REPORT | January/February 2024 | CincyBar.org