A code of ethics is necessary to restore trust in the Supreme Court
“A law repugnant to the Constitution is void.” —Chief Justice John Marshall
For over two centuries, the principle of judicial review has been critical to the equilibrium of the federal government’s power. Chief Justice Marshall’s declaration in Marbury v. Madison marked the first time the U.S. Supreme Court declared that a law passed by Congress and signed by the president was unconstitutional. That 1803 decision echoed views in The Federalist, in which Alexander Hamilton, James Madison and John Jay argued that any robust national government must, by design, have internal guardrails, insisting that government must be empowered to control the governed, but crucially, also itself.
Yet today, over 200 years later, trust and confidence in the Supreme Court is at a historic low. A recent NPR/PBS NewsHour/Marist poll found that only 37% of respondents have a great deal or quite a lot of confidence in the Supreme Court—the lowest level recorded in the five years Marist has been asking the question.
Trust in our institutions of government is a central tenet of our democracy. As lawyers, we are acutely aware that our democracy depends on faith in our court systems. As officers of the court, we may not always agree with a court’s decisions or holdings, but we respect—and are an integral part of—the judicial process. And as members of the American Bar Association, it is our duty to safeguard and further our nearly century-long commitment as national leaders in defining the parameters of legal and judicial ethics.
Early in our history, members recognized the necessity for ethical guidelines for the practicing bar. In 1908, the ABA approved the first Canons of Professional Ethics for attorneys. The Canons of Judicial Ethics, approved in 1924, were intended to serve as general guidelines for the states. Again in 1969, the ABA reviewed, evaluated and updated the judicial ethics canons, adopting the resulting Model Code of Judicial Conduct in 1972.
Members of the federal judiciary are covered by the Code of Conduct for U.S. Judges, originally based on the ABA Model Code of Judicial Conduct, and most states have adopted some version of the model code. Fifty years ago, in 1973, the Code of Conduct for United States Judges was initially adopted by the Judicial Conference. And yet, while all the lower federal courts are bound by this Code of Conduct, this code does not cover the U.S. Supreme Court.
As such, the ABA’s House of Delegates—its policymaking body—passed Resolution 400 in February, urging the Supreme Court to implement a binding ethics code similar to the Judicial Conference of the United States’ Code of Conduct, which lays out rules for the rest of the country’s federal judges regarding extrajudicial activities, financial matters and other conduct.
The resolution’s accompanying report submitted by the Seattle-area King County Bar Association states, “The absence of a clearly articulated, binding code of ethics for the justices of the court imperils the legitimacy of the court.”
Former federal judge J. Michael Luttig, who is co-chairing my newly created Task Force for American Democracy, opined that a binding ethics code for the Supreme Court “ought not be thought of as anything more—and certainly nothing less—than the housekeeping that is necessary to maintain a republic.” Nine justices should not be exempted from adherence to a code of conduct that is so essential to trust and confidence in our judiciary.
The theme of my term is “Lifting Our Voices, Charting the Future.” We as lawyers—as keepers of justice—need to lift our voices. By doing so, we chart the future. The ABA has a long history of being engaged in the issues of the day, fostering discussion, and developing legal and ethical standards—equally necessary to maintain a republic. We stand ready to do so again on this important issue.
This story was originally published in the October-November 2023 issue of the ABA Journal under the headline: “A Deficit of Trust: ABA task force seeks to bolster public confidence in our institutions.”
Follow President Smith on X @ABAPresident or email [email protected].