On Monday, the Supreme Court released a Code of Conduct. As could be predicted, this document did not satisfy the Court's critics. Almost immediately, the document was torn apart: the Justices used "should" instead of "must"; there is no enforcement mechanism; the recusal rules are too loose; and so on. Personally, I am ambivalent about the Code. I firmly believe that all of the Justices try their level best to maintain the highest standards of ethics, and no parchment barriers will affect those duties. Indeed, that duty must come from within, as reflected by the constitutional and judicial oaths they take.
Still, I found problematic one aspect of the Code–or to be more precise, the preface to the code. The first page of the document is labeled the "Statement of the Court," which presumably was joined by all nine members. (Then again, the Chief Justice sent a letter to Senator Durbin that presumably only he wrote.) The Statement purports to lay out the genesis of the Conduct of Conduct. Pay attention to the last two sentences:
The undersigned Justices are promulgating this Code of Conduct to set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the Members of the Court. For the most part these rules and principles are not new: The Court has long had the equivalent of common law ethics rules, that is, a body of rules derived from a variety of sources, including statutory provisions, the code that applies to other members of the federal judiciary, ethics advisory opinions issued by the Judicial Conference Committee on Codes of Conduct, and historic practice. 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. 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.
