In recent years, all nine sitting justices of the U.S. Supreme Court have been the subject of reports questioning their ethics.
Is this an old problem? Something new? Political gamesmanship? Something more serious?
As a legal scholar who has studied legal history, politics, and ethics, my answer to each of these questions is “yes.”
On the one hand, accusing a Supreme Court justice of ethical misconduct is not new. In 1804, Judge Samuel Chase was impeached by the House of Representatives but acquitted by the Senate for violating his oath to act “faithfully and impartially” in several cases, including one in which he disclosed his legal opinion before the defendant was heard, and another, where he delivered “an intemperate and political diatribe.”
On the other hand, such accusations were rarer then. They have since become more common, for five reasons:
1. Ethical sensitivities have changed
Some judicial behavior, which was acceptable then, is now unethical. Although off limits today, Supreme Court justices heard appeals in cases they decided as trial judges and ran for political office without first resigning from the court.
2. The impartiality of judges is no longer assumed
In the 18th century, the eminent British lawyer William Blackstone wrote that “the law implies no possibility of bias or favor in a judge.” Impartiality was simply assumed. Federal law later required judges and justices to disqualify themselves for specific conflicts of interest, such as when they had a financial interest in a case or when a close family member was a party. But until well into the twentieth century, judges could not otherwise be disqualified for personal bias.
But in the 1930s, legal realism emerged as a school of thought, first in law schools and eventually spreading to the general public. It started from the premise that judges were not automatons impervious to outside influences, but were human beings, subject to the same prejudices as the rest of us. Bias and conflicts of interest thus became topics of increased concern, warranting greater scrutiny and regulation.
3. Ethics has become mainstream and weaponized
As the public became more attuned to ideological and other judicial biases, efforts to better regulate judicial impartiality and ethics began. But politicians, pundits, and advocacy groups have also found ways to exploit public concerns about ethics to undermine judges whose ideological predispositions they do not favor.
In the 1960s, conservatives became increasingly concerned about what they perceived as the Supreme Court’s liberal bias during the tenure of Chief Justice Earl Warren. When Democratic President Lyndon Johnson nominated liberal Associate Justice Abe Fortas to replace Warren in 1968, Republicans’ genuine interest in ethics oversight converged with their partisan interest in changing the court’s ideological direction. At issue were serious allegations that Fortas discussed pending cases with Johnson during illegal private meetings and accepted improper payments from companies that had cases pending in court, culminating in Fortas withdrawing from consideration for promotion to Chief Justice and later resigned from the court amid new developments. accusations.
In 1969, the Democratic Senate majority, with some Republican support, rejected Republican President Richard Nixon’s judge nomination. Clement Haynsworth before the Supreme Court, following allegations that Haynsworth had ruled in favor of a corporate defendant whose subsidiaries did business with a company in which Haynsworth owned stock.
And in 1970, Republican Representative and future President Gerald Ford proposed impeaching liberal Judge William O. Douglas for ethical improprieties. One of these was Douglas’s failure to disqualify himself from a defamation lawsuit after selling an article to the defendant publisher. Another was his paid service as director of a charitable foundation whose founder was involved in Las Vegas casinos with underworld connections.
4. Codes of judicial conduct emerged and spread
The ethical confusion surrounding the Supreme Court in the 1960s led to the introduction of legal codes of ethics everywhere except, ironically, in the Supreme Court.
In 1972, the American Bar Association published a Code of Judicial Conduct that was eventually adopted by the judiciaries in all fifty states and the lower federal courts.
Judges are typically introduced to their codes of ethics when they enter the court. They are kept informed of their obligations under continuing judicial education programs, are encouraged to seek ethical guidance from committees established for that purpose, and are subject to sanctions for misconduct by disciplinary authorities within their legal system.
An ethically conscious culture, long entrenched in the lower courts, was lacking at the Supreme Court, which only adopted its code in November 2023. Furthermore, the Supreme Court’s code is weaker than that of the lower courts. It does not require judges to take “appropriate action” if they learn that a fellow judge has violated the code. It neglects the duty to be faithful to the law. It relaxes restrictions on using judicial resources for private purposes and on exploiting a judge’s official status for personal gain. And it argues that the duty to disqualify when impartiality is questioned is diminished by the need for all nine judges to preside.
5. A growing cult of celebrities surrounds the judges
Some members of the Supreme Court, including the late Justices Antonin Scalia and Ruth Bader Ginsburg, have embraced a celebrity cult. They have demonstrated their ideological preferences in speeches, articles, and professional and personal associations, and are spotlighted by ideologically aligned groups, fueling suspicions that they are insufficiently committed to impartial justice.
The Supreme Court’s ethical concerns are not new, but have escalated in modern times.
The problem has been exacerbated by the court’s opponents, who exaggerate allegations of ethical misconduct to score partisan political points, and by the justices themselves, who, lacking an established culture that internalizes ethical expectations, have been nose-blind to the scent of their own behavior.
This article is republished from The Conversation, a nonprofit, independent news organization providing facts and analysis to help you understand our complex world.
It was written by: Charles Gardner Geyh, Indiana University.
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Charles Gardner Geyh does not work for, consult with, own shares in, or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
