Dec 2, 2022

The Supreme Court needs a code of conduct. Now.

The Supreme Court needs a code of conduct. Now.
Photo by Jackie Hope / Unsplash

It's untenable not to have one — and the public is noticing.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day.

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Seven months ago today, we witnessed one of the most unprecedented and shocking events in Supreme Court history: Someone leaked the draft of a landmark decision, revealing that Roe v. Wade was going to be struck down.

The news hit the public like a bomb. Not only would the decision change American law for tens of millions of people, it was also an unbelievable breach of discretion for the court, where leaks are almost unheard of. It was not the first time a decision's outcome had made its way to the public before the court intended — in fact, the initial Roe v. Wade decision in 1973 also leaked — but nothing quite like this had ever happened before. Even in 1973, the leak came after the decision was final and did not include a full draft of an opinion written by one of the justices.

Chief Justice John Roberts wasted little time addressing the public, calling it a “betrayal of the confidence of the Court" and insisting whoever leaked the document had violated “an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court.”

Absent from Roberts' statement, though, was something curious: An explanation of what code or which rules had actually been broken. Perhaps because there were none to cite. Roberts could only point to tradition.

Unlike all other federal justices and state judges, Supreme Court justices do not operate under a code of conduct. Similarly, the Code of Conduct for judicial employees applies to all federal court employees except those who work for the Supreme Court. If you find this peculiar, or unsettling, rest assured that you are not alone.

Ethics codes or codes of conduct for most federal justices and employees of those justices can vary. According to the Congressional Research Service, broadly speaking, these codes typically ask judges to do a few things in particular: