Charles Gardner Geyh
It’s a great time to be alive for a judicial ethicist. There aren’t very many of us. We tend to tag along in the shadow of the lawyer ethics people—the cool kids in the schoolyard. Pimply and off-putting though we may be, we have a particular set of skills that, thanks to the Supreme Court and its recent shenanigans, have suddenly acquired relevance as judicial misconduct has been thrust into the national spotlight. So don’t step on my moment. I want to make the most of it.
Part of the reason judicial ethics has been marginalized is that it is typically framed as a hyper-specialized subfield that brings arcane rules to bear for the limited purpose of deciding whether judge x violated rule y when she did z. But I’m going to swing for the fences here and argue that judicial ethics implicates much more than that. It provides us with a framework for thinking about the role judges play in a democratic republic. At a time when the Supreme Court’s legitimacy is in a tailspin,1 judicial ethics offers insights into why—and an avenue for reform.
I’m going to begin with a short history of judicial ethics regulation, ending in 2011, when the Court declined overtures to adopt a code for itself. Second, I’ll summarize ensuing ethics controversies involving Supreme Court justices—controversies that elicited mounting criticism and calls for the adoption of a code that the Court ultimately heeded in 2023. Third, I’ll explore what social science tells us about when codes of conduct work and when they don’t. Fourth, in light of that social science literature, I’ll explain why the Supreme Court’s new Code and the circumstances under which it was adopted do not bode well for its success in promoting a more ethical climate on the Court. Fifth, I will offer some modest, business-as-usual recommendations, on how, over time, the Supreme Court can join the rest of the American judiciary in embracing a code culture. Sixth, and finally, I will talk about the relationship between the Court’s ethical lapses and its declining legitimacy before turning to the circumstances of the second Trump administration and discussing why the need for reform becomes more urgent in a world on fire.