On November 13, 2023, the U.S. Supreme Court published a Code of Conduct that codifies the ethics rules and principles governing the conduct of Justices and their staff. The Code consists of five Judicial Canons that draw from the common law, statutory provisions, the ethics code applicable to other federal judges, and advisory opinions issued by the Judicial Conference Committee on Codes of Conduct. What follows, while not exhaustive, are some key takeaways from the new Code of Conduct that any client appearing before the Supreme Court should be aware of:
- Conflicts of Interest and Disqualification: Canon 3 of the Code states that a Justice should disqualify himself in a proceeding in which the Justice’s impartiality might reasonably be questioned. The Canon then sets forth six scenarios that require disqualification—including, for example, when the Justice (or his spouse or minor child) has a financial interest in a matter before the Court, or when the Justice (or his spouse, or a person related to either one) is known to be affiliated with a party before the Court. Importantly, however, the Code makes clear that neither the filing of an amicus curiae brief nor the participation of counsel for amicus curiae requires a Justice’s disqualification.
- Extrajudicial Activities: Canon 4 of the Code sets forth the rules and limitations on activities Justices may engage in outside of their official role with the Court. First, the Canon allows a Justice to speak, write, or teach so long as it is not done at an event that either: (1) is associated with a political party or campaign, (2) promotes a commercial product or service, or (3) is organized by an entity with a financial interest in a matter before the Court. The Canon next permits a Justice to serve as an officer, director, or advisor of a nonprofit group (including civic, charitable, educational, religious, or social organizations), so long as the organization will neither be engaged in proceedings that will come before the Justice or be regularly engaged in adversary proceedings in any court. The Justice may also assist with the planning of fundraising activities by a nonprofit—but he may neither solicit funds for any organization, nor permit the use of the prestige of judicial office for fundraising purposes.
- Acceptance and Disclosure of Gifts: Canon 4 of the Code also requires that the Justices comply with the restrictions on acceptance of gifts (and the prohibition on solicitation of gifts) set forth in the Judicial Conference Regulations on Gifts. Prior to the promulgation of the new Code, it was unclear whether those regulations, which governed lower federal judges, applied to the Justices. The Canon now makes explicit that the rules apply to the Justices in full—a fact that had only been tacitly acknowledged by the Court since 1991.
- Prohibition on Political Activities: Canon 5 prohibits the Justices from: (1) acting as a leader or holding any office in a political organization; (2) making speeches for (or endorsements of) a political organization or candidate; (3) soliciting funds or making a contribution to a political organization or candidate; or (4) attending a dinner or other event sponsored by a political organization or candidate.
Notwithstanding the specific provisions of the Code, as the published commentary makes clear, the Canons, “in many cases…are broadly worded general principles informing conduct, rather than specific rules requiring no exercise in judgment or discretion.”