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The Supreme Court And Code Of Ethics


The most recent allegation of sexual misconduct against Justice Brett Kavanaugh is raising questions about why the Supreme Court doesn't have a code of ethical conduct. After all, the rest of the federal judiciary does. In March at a congressional oversight hearing, Justice Elena Kagan said that Chief Justice John Roberts is studying the issue.

Joining us to discuss this matter is NPR legal affairs correspondent Nina Totenberg. Hi, Nina.


SHAPIRO: Why haven't Supreme Court justices been covered by the judicial codes of conduct that cover other judges?

TOTENBERG: They are covered by the statutory judicial code of conduct for all federal judges on the big questions of recusals and gifts. Just like all other federal judges, they're required to recuse themselves if they own even one share of stock in a company with a case before the court. And they're required to recuse if a close relation is a lawyer in a pending case.

But there are some questions on which they consult the code but aren't bound by it - for instance, can they speak at a political event of some sort. Mainly they do adhere to the code, and that bars things like that. But they don't have to. So they do have some discretion.

SHAPIRO: What is the reasoning for not having Supreme Court justices covered by all of the same rules that cover other judges?

TOTENBERG: Because for one thing, in the lower courts, you can substitute another judge in if somebody is recused. Not so in the Supreme Court. Those are the only nine folks that can do it.

SHAPIRO: And is the buzz now about whether the justices will someday be covered by an ethics code all about Justice Kavanaugh and these allegations of sexual impropriety, which, we should note, he has denied? Or is there more going on?

TOTENBERG: Frankly, trying to link Kavanaugh to the code of conduct is just sort of silly because the Constitution provides only one way to get rid of a Supreme Court justice, and that's impeachment. And you'd have to have a lot more evidence than an allegation. It's only happened once in history. In 1804, Justice Samuel Chase was impeached but not convicted. He remained on the court for another six years until his death.

SHAPIRO: Well, it sounds like you're saying an ethical code of conduct that apply to Supreme Court justices might not actually do much of anything.

TOTENBERG: Well, it would help, I think, the justices look like they have a code of conduct. But the real shot is the confirmation process or if you've really got the goods in impeachment. For instance, in the most recent example, Justice Abe Fortas sat on the Supreme Court for four years in the 1960s, appointed by President Johnson. And when Johnson appointed him to be chief justice, a whole bunch of new information came out about his conduct. Republicans filibustered his nomination as chief to death. And later, when more information yet came out, he stepped down under pressure.

SHAPIRO: What kinds of allegations are those that actually would have had enough of an impact to derail a nomination like his?

TOTENBERG: Well, first, he accepted a $20,000-a-year fee arrangement for life with a financier's foundation. And here's the rub - the financier was under federal investigation for securities violations.


TOTENBERG: And second, he remained a major unofficial adviser to President Johnson. And the allegation was that this would and did lead to major conflicts of interest in cases before the court - among them, for example, challenges to the Vietnam War and the draft. I was told back then that one of the justices walked into Fortas's chambers and saw a map of Vietnam on the justice's couch with planned bombing sites laid out.

Now what we have in terms of allegations and proof against Justice Kavanaugh is nothing like that or any of the Fortas stuff.

SHAPIRO: Given how well you know the justices in the court, could you ever see this code of ethics coming out and applying to the nine justices?

TOTENBERG: Look; I'm told by ethics experts it wouldn't be that difficult to write one. The question, of course, is who would enforce it?

SHAPIRO: NPR legal affairs correspondent Nina Totenberg, thank you.

TOTENBERG: Thank you.

(SOUNDBITE OF SOHN SONG, "SIGNAL") Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.