An ethical judiciary is an integral pillar of a well-functioning democracy. In an appeal for the United States Supreme Court to adhere to a high ethical standard, a petition signed by more than 100,000 citizens, 212 law professors and three members of Congress calls for the court to formally observe the Code of Conduct for United States Judges — a set of ethical guidelines designed to maintain judicial integrity. The Supreme Court doesn’t abide by the code, and it should embrace these guidelines and establish a clear standard for recusal from cases in which justices may have a conflict of interest.
The issue of judicial ethics has gained attention as the Supreme Court prepares to rule on the constitutionality of President Barack Obama’s signature legislative achievement — the 2010 healthcare reform law. Progressives argue that Justice Clarence Thomas should recuse himself from the case. Thomas’s wife, Virginia, has worked against the implementation of the ACA, calling for the repeal of the law in question. Likewise, conservatives maintain that Justice Elena Kagan shouldn’t hear the case because she served as Obama’s solicitor general while the law was meandering its way through Congress. The solicitor general represents the U.S. federal government before the Supreme Court.
This individual case highlights the necessity of having a clear and coherent set of recusal guidelines for the Supreme Court, especially since judges in all lower federal courts are bound to follow them. The standards are not unreasonable — they generally commit judges to uphold integrity, avoid impropriety, perform duties fairly and refrain from political activity. Formalizing these rules for the Supreme Court could, at the very least, stop calls for recusal and provide a set of standards to facilitate public appeal in the interest of reasonable judgments. In the case of the healthcare law, people calling for Kagan or Thomas to refrain from ruling would have legal backing for their arguments through specific provisions of the Code of Conduct.
The highest court in the land should undoubtedly be bound to the same, or higher, ethical code as all other federal judges. The decisions of the Supreme Court carry the most weight and effectively serve as the final say short of Constitutional amendment. The Supreme Court has decisively shaped the American legal system with rulings on wide ranging and controversial issues such as school segregation and abortion — issues that have immense implications for individual rights and legal precedent. It follows that formalized judicial ethics must be the foremost concern of the court, not an afterthought.
Regent Denise Ilitch (D-Bingham Farms), Chair of the University’s Board of Regents, excused herself from the board’s vote last month on whether the NHL’s Winter Classic could be played in the Michigan Stadium, because her family owns the Detroit Red Wings. If Ilitch can recuse herself from a decision with a far smaller impact, the Supreme Court should — at the very least — adopt a general set of guidelines for Justices’ behavior.
It’s true the Supreme Court’s formal acceptance of the Code of Conduct for United States Judges could contribute to additional politicization of the court with frivolous partisan calls for recusal, but the benefits outweigh the costs. The Supreme Court is too influential of a legal entity to not exercise appropriate prudence when it comes to potential conflicts of interests. While justices are already trusted with high integrity, formal guidelines would serve to maintain the bar they’ve set.