Commentary
This Code of Conduct is substantially derived from the Code of Conduct for U.S. Judges, but adapted to the unique institutional setting of the Supreme Court. In certain instances, the foregoing Canons provide fairly specific guidance. A Justice, for example, “should not testify voluntarily as a character witness.” Canon 2B. A Justice “may serve as the executor . . . only for the estate, trust, or person of a member of the Justice’s family.” Canon 4E. In many cases, however, these Canons are broadly worded general principles informing conduct, rather than specific rules requiring no exercise of judgment or discretion. It is not always clear, for example, whether particular conduct undermines, promotes, or has no effect on “public confidence in the integrity and impartiality of the judiciary,” Canon 2A, or whether a Justice has acted in a “patient, dignified, respectful, and courteous” manner, Canon 3A. This concern is heightened with respect to Canons applicable to Justices of the Supreme Court, given the often sharp disagreement concerning matters of great import that come before the Supreme Court. These Canons must be understood in that light.
This Commentary does not adopt the extensive commentary from the lower court Code, much of which is inapplicable. It instead is tailored to the Supreme Court’s placement at the head of a branch of our tripartite governmental structure.
Canon 3B addresses the inherently judicial function of recusal. The Justices follow the same general principles and statutory standards for recusal as other federal judges, including in the evaluation of motions to recuse made by parties. But the application of those principles can differ due to the effect on the Court’s processes and the administration of justice in the event that one or more Members must withdraw from a case. Lower courts can freely substitute one district or circuit judge for another. The Supreme Court consists of nine Members who sit together. The loss of even one Justice may undermine the “fruitful interchange of minds which is indispensable” to the Court’s decision-making process. See Dick v. New York Life Ins. Co., 359 U.S. 437, 459 (1959) (Frankfurter, J., dissenting). Recusal can have a “distorting effect upon the certiorari process, requiring the petitioner to obtain (under our current practice) four votes out of eight instead of four out of nine.” S. Ct. Stmt. of Recusal Policy (Nov. 1, 1993). When hearing a case on the merits, the loss of one Justice is “effectively the same as casting a vote against the petitioner. The petitioner needs five votes to overturn the judgment below, and it makes no difference whether the needed fifth vote is missing because it has been cast for the other side, or because it has not been cast at all.” Cheney v. United States Dist. Court for D.C., 541 U.S. 913, 916 (2004) (memorandum of Scalia, J.). And the absence of one Justice risks the affirmance of a lower court decision by an evenly divided Court—potentially preventing the Court from providing a uniform national rule of decision on an important issue. See
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