What does “good behavior” mean when you have the appointment of a lifetime?

The AP recently published a series of articles questioning whether certain actions by members of the Supreme Court constituted unethical behavior. This type of examination of the most venerated jurists in the nation is necessary. However, the AP's actions in equivocating Justice Sotomayor's receipt of disclosed book royalties - which are expressly permitted by the Code of Judicial Ethics - to Justice Thomas' impermissible receipt of hundreds of thousands of dollars in undisclosed trips, rental income, and real estate deals, serves as a stark reminder that even women who achieve the pinnacle of success in this profession will be subjected to an unfair double standard.

Judicial ethics is an issue that can and must be addressed, particularly at the highest levels. Our Supreme Court justices should be setting - and held to - the highest of ethical standards. Likewise, the press, when writing about ethical issues of jurists, must be accurately comparing the same types of conduct, rather than creating improper equivocations simply to appear "unbiased." False equivocations such as the one the AP has made between Justice Sotomayor's book royalties, and Justice Thomas' undisclosed financial remuneration from parties to litigation, do nothing but perpetuate a gender bias the legal profession desperately needs to jettison once and for all.

Beyond that, the bigger issue is why Supreme Court justices are not held to the same ethical standards as the judges whose decisions they review. Or, given the data, are they?

The Founding Fathers never intended for Supreme Court justices to be exempt from the rules of ethics. The United States Constitution explicitly provides that "[T]he judges, both of the supreme and inferior courts, shall hold their offices during good behavior." And yet, the Judicial Conference of the United States - the national policy making body for the federal courts - has exempted the nine most powerful jurists in the Nation from even the most basic rules of ethics that are (theoretically) mandatory for both judges and employees of all lower courts.

The Judicial Conference was established in 1922, and is headed by the Chief Justice of the United States. For the first fifty years of its existence, the Judicial Conference had no Code of Ethics in place for any federal judge in the United States. In April 1972 a committee was created to finally examine judicial ethics, with a Code of Conduct being adopted the following year, during the height of the Watergate scandal.

The Code of Conduct states it applies to all federal judges, with no exceptions. Why then, are the Supreme Court justices - who are considered federal judges under Article III, Section 1 of the Constitution - exempt?

Although there is a procedure to make a complaint about federal court judges, there is no mechanism to make a complaint about a Supreme Court justice. And in reality, does it matter? In 2021, of the 1,282 complaints commenced against federal judges, zero resulted in any remedial action being taken. Zero. (See https://www.uscourts.gov/sites/default/files/data_tables/jb_s22_0930.2021.pdf)

Only two were even reviewed by the Judicial Council Committee, and both of those were dismissed. These complaints included complaints that judges received gifts or bribes, that they engaged in discrimination or harassment, and included complaints filed by employees of the federal judiciary. What story do these statistics tell the public, members of the legal profession, and litigants about whether and how members of the federal judiciary are held accountable? Simply put, they are not. Why is that?

One problem is the mechanism for reviewing complaints. Right now, complaints are evaluated by the chief judge of the circuit. If the complaint is about the chief judge, the next most senior judge (i.e., their direct subordinate) is tasked with evaluating the complaint. The judge about whom the complaint is made immediately receives a copy of the actual complaint. The chief judge then gets to examine whether corrective action has been taken or could be taken without a formal investigation. The chief judge can request a written response to the complaint, but that response is not provided to the complainant. Given that the federal judiciary is tasked with ensuring due process for litigants, it seems appropriate that a complainant should be provided an opportunity to review the response and provide a reply, particularly when the judge who is complained about has the opportunity to walk down the hall and chat about the complaint with the chief judge - an opportunity not afforded to the complainant.

A chief judge may simply dismiss the complaint, or find that it "relates to the merits of a case," which is a hugely broad category it seems is used to dispose of a large number of complaints. In reality, it is likely that a chief judge could argue any complaint about a judge relates to a case being heard, since that is how judges come into contact with members of the public. But that does not necessarily mean a complaint is invalid. If a complaint alleges that a judge displayed racial bias in how he or she ruled, does that mean a complaint should be dismissed simply because it necessarily referenced an underlying case? In that context, a complaint about Justice Thomas' receipt of gifts from a person with business before the Court could simply be dismissed because it relates to the merits of a case - which is the exact complaint in the first place.

Even if a complaint progresses to review by Special Committee, that Committee is made up of members of the Judicial Council - i.e., only other judges. There are no checks and balances from independent bodies, or even non-judicial actors, to ensure that complaints are properly reviewed and investigated, and that remedial action is taken.

While the lack of a Code of Ethics regarding the Supreme Court is a glaring issue which must be addressed, the enforcement of the Code of Ethics to all federal judges is an equally pressing matter. The continued "good behavior" of federal jurists is a Constitutional mandate, and its equal application to all judges is a moral imperative that must be addressed - immediately - by the Judicial Conference.