Supreme Court Code Reveals Details About When Justices Should Recuse Themselves

United States Supreme Court Justices pose for their official portrait at the Supreme Court in Washington on Oct. 7, 2022. Alex Wong/Getty Images

The Supreme Court on Monday announced it adopted a new ethics code, giving more details about what could disqualify a justice from participating in a case.

The ethics code covers a range of policy issues, containing sections codifying that justices should not let outside relationships influence their official conduct or judgment, spelling out restrictions on their participation in fundraising, and reiterating limits on the accepting of gifts. It also states that justices should not “to any substantial degree” use judicial resources or staff for nonofficial activities.

“The absence of a Code, however, has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules,” the Supreme Court justices wrote in a statement alongside the code. “To dispel this misunderstanding, we are issuing this Code, which largely represents a codification of principles that we have long regarded as governing our conduct.”

But it went into greater detail on what could disqualify a justice.

“A justice should disqualify himself or herself in a proceeding in which the justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the justice could fairly discharge his or her duties,” it stated.

That includes when a justice has a personal bias or prejudice regarding a party involved in a case or if, “at a prior stage of the proceeding, the justice represented a party, or a lawyer with whom the justice previously practiced law served during such association as a lawyer for a party, or the Justice or lawyer has been a material witness in the proceeding.”

Past Disqualifications

In the Supreme Court, justices generally disqualify or recuse themselves from partaking in cases in which they have a financial stake. Former Justice Sandra Day O'Connor often would not participate in cases that involved telecommunications companies because she owned stock in some of them, while former Chief Justice William H. Rehnquist stepped down in cases that were argued by attorney James Brosnahan, who had testified against Justice Rehnquist during a 1986 hearing.

A justice also “should not be swayed by partisan interests, public clamor, or fear of criticism. A Justice should participate in matters assigned, unless disqualified, and should maintain order and decorum in judicial proceedings,” according to the code.

According to the code, a disqualification should also factor in whether “the justice has served in government employment and in that capacity participated as a judge (in a previous judicial position), counsel, advisor, or material witness concerning the proceeding or has expressed during prior government or judicial service an opinion concerning the merits of the particular case in controversy.”

The code noted that even though a justice may engage in activities outside of the court, the justice should be wary of activities that “detract from the dignity of the justice’s office, interfere with the performance of the justice’s official duties, reflect adversely on the justice’s impartiality, lead to frequent disqualification,” or violate specified limitations included in the code.

It also warns that the justices should not use their chambers, staff, or other resources “to engage in activities that do not materially support official functions or other activities permitted under these Canons,” or rules.

Other Details

A commentary released with the code elaborating on some of its provisions said that justices who are weighing a speaking engagement should “consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public.”

The justices said that their code of ethics was adapted from the federal judiciary system’s code of conduct but made note of the “unique institutional setting of the Supreme Court.”

“This Commentary does not adopt the extensive commentary from the lower court Code, much of which is inapplicable. It instead is tailored to the Supreme Court’s placement at the head of a branch of our tripartite governmental structure,” it stated.

Sen. Dick Durbin (D-Ill.) speaks during a hearing reviewing the president’s fiscal year 2024 budget request for the National Guard and Reserve in Washington on June 1, 2023. Madalina Vasiliu/The Epoch Times

The court has been criticized for months after alleged undisclosed trips by justices on private jets, luxury vacations, real estate, book deals, recreational vehicle deals, and more.

Sen. Dick Durbin (D-Ill.) called the code a “step in the right direction.” But Mr. Durbin held open the possibility of further legislative efforts if he determines the code falls short of “the ethical standards which other federal judges are held to.”

“We are going to carefully review this proposed code of conduct to evaluate whether it complies with our goal that the highest court in the land not languish with the lowest standard of ethics in our federal government,” Mr. Durbin said.

Reuters contributed to this report.