Stop me if you’ve heard this one before. There are concerns that the professional activities of the spouse of one of our Supreme Court justices represent a conflict of interest for that justice. No, not that spouse. This time we aren’t talking about Justice Clarence Thomas’ wife, Ginni Thomas, and her efforts to overturn the results of the 2020 presidential election. This time we’re talking about Chief Justice John Roberts’ wife, Jane Sullivan Roberts, and her work as a legal recruiter. Here, the concern is that Sullivan Roberts’ work raises ethical questions because she has placed lawyers at firms that have cases before the Supreme Court.
There are once again calls for Congress to subject the Supreme Court to a mandatory code of conduct. All but nine of the federal jurists in our country are subject to such a code, which amounts to a series of ethical canons. And the nine who aren’t are the nine most powerful we have. But not only would a mandatory code of ethics for the Supreme Court be difficult to impose, it also wouldn’t solve the main reason that confidence in the court has waned. Something is rotten at the Supreme Court. But it’s not what many seem to think it is.
First things first: When it comes to the activities of the spouses of Supreme Court justices, there is a huge gulf between seeking to undermine a valid election, as Ginni Thomas did, and placing lawyers in high-powered law firms with business before the Supreme Court, as Jane Sullivan Roberts did. It’s worth mentioning that Sullivan Roberts voluntarily stepped down from her partnership position at a law firm when the chief justice joined the Supreme Court, because of built-in concerns about the awkwardness of practicing law while her husband served on the nation’s highest court
This brings me to my main point: When people complain that the Supreme Court lacks integrity or legitimacy, I believe what most of them are upset about are the court’s rulings, not what the justices’ spouses are doing. Of course, some people are genuinely concerned about the potential ethical issues facing the high court, no matter how the court rules, but I suspect many are really troubled, and legitimately so, by something else.
At least five members of this court seem comfortable ignoring its past decisions and manipulating the law to reach more conservative goals. This particular conservative strategy didn’t begin, nor will it end with, its decision to overturn Roe v. Wade. In 2010, the conservative majority of the court famously overturned two of its past decisions when it ruled in Citizens United that corporations have a First Amendment right to spend unlimited sums of money to elect or defeat candidates, as long as that spending is independent of a candidate’s campaign.
Judges, and Supreme Court justices, are supposed to respect their past decisions, unless there is a serious problem with those previous decisions, such as their being fundamentally unworkable or wrong (wrongness, of course, being in the eye of the beholder). Whether or not those with judicial authorities follow the doctrine of stare decisis, which cautions courts to adhere to their prior rulings, is one of the ways we can tell whether the people in the robes are acting as judges or politicians. Following the doctrine of stare decisis helps to ensure that when judges and Supreme Court justices are making decisions, they’re evenhandedly applying the facts of the case to the law. This would be in contrast to simply making decisions because they want a certain outcome, regardless of what previous decisions might say. It intuitively makes sense that people are more likely to respect jurists, and find that courts have integrity, if it actually appears that they are sticking to precedents and not hunting for ways to get to desired political outcomes.
At bottom, the point of a code of ethics is actually similar to stare decisis. The point of both is to make sure we can trust judges to judge. The purpose of a code of conduct is to make sure that jurists make decisions based solely on the law, and not what might benefit them, their spouses or others in their close orbit. When they fail to respect past decisions, or take actions calling into question their ethics, it can undermine the public’s trust.
There is another reason that leaning on a code of conduct to solve what ails the court is not desirable. It’s not entirely clear that it would be legal to impose a mandatory code of conduct on the Supreme Court. Such a code would raise separation of powers issues. The federal judiciary operates independently from the two political branches of our federal government. If Congress created a mandatory code for the Supreme Court, there’s an argument to be made that it would amount to a legislative takeover of judicial authority. Awkwardly, the Supreme Court itself would ultimately rule on the legality of any such code.
There’s no question that in an ideal world federal judges, and Supreme Court justices, would conduct themselves in ways that avoid ethical questions. Justices enjoy lifetime appointments and can only be removed through an arduous and rarely used impeachment process. They are hugely powerful and largely operate in a world that offers them enormous discretion and precious few negative consequences for their decisions. They owe us ethical behavior.
But if we’re really worried about justices erasing a woman’s right to an abortion from the Constitution and granting First Amendment rights to corporations by ignoring precedent, then our argument should be for them to act like justices instead of politicians. Even if a code of conduct restricting conflicts of interest could be enforced, it wouldn’t be as significant as a commitment from justices to stick to the law.