Statement on the Need for SCOTUS to Adopt a Compulsory Ethics Code

April 8, 2022

Statement by Members of Checks and Balances calling for the establishment of a compulsory code of conduct for the Supreme Court of the United States:

We believe it is past time that the Supreme Court establish a mandatory code of ethics relating to recusals by Supreme Court justices. The high Court’s historical practice has been to leave to each justice how or if to follow rules of judicial conduct. This historical practice risks damaging the reputation and therefore the legitimacy of the Court in the eyes of the American people. Its continuation suggests that  the justices consider they alone should be judges in their own cases.

The Chief Justice has urged Congress not to legislate on this subject, citing separation of powers concerns. That is an argument that proves too much as it applies to all judges at all levels of the federal judiciary. Disputed cases could be adjudicated by lower court judges sitting in panels on a rotating basis. And, as in many state judiciaries, a mechanism might be devised from which justices—or any federal judge—might seek confidential counsel when in doubt in a particular instance.

Americans are united in their belief that Chief Justice Marshall was right in emphasizing that we have a government of laws, not of individuals. To keep faith with that lodestar, we urge the Court formally to apply to itself rules of judicial conduct that deal with the issue of recusal as well as professional conduct in discharging its constitutional duties.  Doing so would obviate the need for legislation.

  • Donald B. Ayer
  • Travis Brown
  • Mickey Edwards
  • Charles Fried
  • Stuart M. Gerson
  • John Giraudo
  • Carter G. Phillips
  • Trevor Potter
  • Jonathan C. Rose
  • ​Nicholas Rostow
  • Robert B. Shanks
  • Christopher Shays
  • Michael Shepherd
  • Stan Twardy, Jr.
  • Christine Todd Whitman

Each of us speaks and acts solely in our individual capacities, and our views should not be attributed to any organization with which we may be affiliated.