U.S. Supreme Court Adopts Code of Conduct

November 15, 2023

After months of controversy, the U.S. Supreme Court has adopted its first-ever Code of Conduct for Justices. Each of the nine Justices agreed to the code and signed on to an accompanying joint statement acknowledging that the absence of such a code has led to “the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.” The code is intended to “dispel this misunderstanding” by codifying the ethics principles the Justices have informally followed in the past.

The code itself is eight pages long and tracks many of the ethics rules already applicable to other federal judges around the country. A substantial portion of the code focuses on recusal procedures for the Justices. Specifically, a Justice should recuse himself or herself “in a proceeding in which the Justice’s impartiality might reasonably be questioned.” Some examples of such situations include where the Justice or a member of his or her family has a financial interest in the subject matter of a case, has a financial interest in a party to the proceeding, or serves as an officer, director, or trustee to a party. However, the commentary to the code notes that the application of the recusal provisions may differ from other federal courts due to the unique nature of the Supreme Court and the distorting effect the loss of even one Justice may have on the outcome of a case.

The rules also address Justices’ extrajudicial activities, including speeches, writing, teaching, political activity, and affiliation with various types of organizations. While Justices may generally participate in extrajudicial activities that do not interfere with official duties or otherwise detract from the office, the code provides several specific limitations. For example, a Justice should not speak or participate in events organized by a group that has a substantial financial interest in a pending case or events that promote a commercial product or service (other than a Justice’s own book). Additionally, Justices should typically avoid personally participating in an organization’s fundraising activities or membership solicitations, or otherwise using the prestige of the office for such purposes.

Justices are instructed to follow the gift rules applicable to all other federal judges – the Judicial Conference Regulations on Gifts. These rules restrict judges from accepting gifts from certain donors, namely anyone seeking official action from or doing business with the court, or any person whose interests may be substantially affected by the performance or nonperformance of the officer’s judicial duties. There are exceptions for certain permitted activities. The Supreme Court Code of Conduct further specifies that Justices may accept reasonable compensation and reimbursement for permitted activities, including associated food, lodging, and travel, so long as the payments do not appear improper and are properly disclosed by the Justice.

Finally, Justices must refrain from political activity. This includes acting as a leader or holding an office in a political organization, making speeches on behalf of a political organization or candidate, soliciting funds or paying an assessment to a political organization, and attending or purchasing a ticket for a dinner or other event sponsored by a political organization or candidate.

The full Supreme Court Code of Conduct is available here.