Kirsten Brueggemann
Associate Editor
Loyola University Chicago School of Law, JD 2025
Shortly before the conclusion of the Supreme Court’s term in June 2023, the Court delivered three blows to President Biden and the Democratic party. First, the Court struck down the student debt relief program championed by President Biden. Second, the Court ruled in favor of a Colorado web designer who sought the right to refuse service to a same-sex couple. Lastly, the Court gutted affirmative action by making it unlawful for colleges to consider race as a specific factor in admissions. These high-profile decisions came just over a year after the contentious Dobbs decision, following an extraordinary leak, which overturned abortion rights that had been established under Roe v. Wade and Planned Parenthood v. Casey. These cases are perhaps marred by recent ethics scandals amongst the justices. Consequently, voices from both sides of the political aisle have called for reform of the nation’s highest court.
Recent ethics scandals
These events unfold against the backdrop of a series of recent ethics controversies plaguing the Court. Notably, Ginni Thomas, Justice Clarence Thomas’ wife, was implicated in former President Donald Trump‘s failed efforts to cahllenge the 2020 election results. Consequently, there have been widespread demands for Justice Thomas to recuse himself from any case involving January 6th. Furthermore, earlier this year, Justice Clarence Thomas faced scrutiny for failing to disclose a private jet and luxury yacht vacation in Indonesia, generously provided by his billionaire real-estate developer friend, Harlan Crow. During the trip, he spent a week at a secluded resort alongside conservative influencers and activists.
Justice Samuel Alito is under fire after failing to disclose that he was treated to an all-expenses-paid, high-end fishing trip to Alaska in 2008 with hedge fund magnate Paul Singer. Following the luxury fishing trip, Justice Alito failed to recuse himself when Singer had cases before the Court multiple times, and even received a judgment of $2.4 billion against the nation of Argentina.
In a comparable vein, Justice Neil Gorsuch sold a property to the executive of one of the nation’s largest law firms, Greenberg Traurig, nine days after becoming a Supreme Court Justice. Justice Gorsuch did not disclose the identity of the buyer and Greenberg Traurig has been involved in at least twenty-two cases before the Supreme Court since the purchase.
Binding code of ethics for justices of the Supreme Court
One proposed solution is imposing a binding code of ethics for supreme court justices. The American Bar Association (“ABA”) insists the Supreme Court should adopt a code of judicial ethics. The ABA strongly advocates that the absence of a clear code of ethics for the Supreme Court endangers the legitimacy of the Court. Currently, there is no clearly articulated code of ethics for the justices of the Supreme Court, whereas all other federal judges must adhere to the Judicial Conference of the United States’ Code of Conduct when it comes to performing their duties, financial affairs, and extrajudicial activities.
The Code of Conduct for federal court employees explicitly sets out a “duty” of confidentiality, making it clear that any confidential information acquired during the course of official duties must never be disclosed. This code of ethics is applicable irrespective of the court’s decision on a particular case. It would, therefore, establish a higher standard of accountability for not only the Justices, but also the clerks and other members of the Court’s staff.
Moreover, the Code of Conduct for federal judges mandates that they conduct themselves in a manner that consistently fosters public confidence in the integrity and impartiality of the judiciary. This requirement does not currently apply to the Supreme Court. While many opinions rendered by the Justices are crafted with the legitimacy of the Court in consideration, the absence of an explicit code of ethics with well-defined duties and responsibilities leaves room for ambiguity. The establishment of such a code would offer the Supreme Court Justices a clear guideline for addressing highly intricate political issues while simultaneously upholding and bolstering public confidence in the Court’s impartiality and integrity.
Politicized Court means stricter guidelines
Many have called this Court the most politicized in history, referring to the stark divide between the conservative majority and liberal minority as well as the rift between public opinion and the Court’s rulings. As the Court becomes more politicized and rules on very sensitive political topics such as abortion or First Amendment issues, it is increasingly important to have a strong set of ethical guidelines to ensure that the justices are making the correct decisions for the American people.