Insights on the Supreme Court's New Ethics Guidelines

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Jack Capizzi:  Well, hello, and welcome to today’s Federalist Society virtual event. This afternoon, Monday, November 20, we are discussing insights on the Supreme Court’s recently announced code of conduct. My name is Jack Capizzi, and I’m an assistant director of practice groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.

 

After our speakers have given their remarks, we will turn to you, the audience, for any questions you might have. If you do have a question at any point, please type it into the Q&A function at the bottom of your screen, and we’ll handle them as we can towards the end of the program. With that, thank you all for being with us. I’ll turn it over to our moderator, Jennifer Perkins, who is a judge on the Arizona Court of Appeals for Division One. With that, thank you all again for being with us. Judge Perkins, over to you.

 

Hon. Jennifer Perkins:  Thank you, Jack, and thank you to The Federalist Society and our panelists for joining us today. Thank you to all of those who have logged in. I can see that participant number ticking up a little bit as we get started. So I just wanted to take a brief moment to walk through some of the history that is related to federal courts and judicial conduct directives.

 

This is not intended to be comprehensive, and my purpose here is not to provide a background of judicial ethics writ large. In part, as Mr. Lat is quite familiar, The Federalist Society just held a panel discussion on originalist perspectives and ethics on the Supreme Court in which the speakers covered a great deal of that territory. I recommend watching or listening to that recording if you have an opportunity. So here’s my not so comprehensive brief history of SCOTUS and ethics regulations.

 

The federal judicial oath of office has since 1789 included commitments to administer justice without respect to persons, to do equal right to the poor and to the rich, and to faithfully and impartially discharge and perform the duties of judicial office. But as Chief Justice Roberts acknowledged in his 2011 year-end report, for 130 years federal judges had no formal source for guidance on ethical questions. So what prompted the change after more than a century? Baseball, specifically the scandal involving the Chicago White Sox and allegations of the attempt to fix the 1919 World Series.

 

Team owners thereafter chose federal district judge Kenesaw Mountain Landis to serve as the commissioner of baseball in an effort to restore confidence and purge corruption in baseball. But that prompted the interesting question of whether Judge Landis could simultaneously serve on the bench and as baseball commissioner. He solved the problem by resigning his judicial position, but the question lingered.

 

Chief Justice Taft thereafter chaired a commission on judicial ethics, convened by the American Bar Association in 1922 which resulted in the 1924 Canons of Judicial Ethics. These advisory guidelines thereafter aided judges in answering difficult ethical questions. They were guidelines, but also in 1922 Congress formed the Judicial Conference of the United States, which includes the chief judge of every federal circuit and a district judge from each circuit. The judicial conference promulgated and periodically revises the code of conduct for United States judges and advises judges and judicial employees on application of the code provisions. I spent a year as a federal district court judge’s first law clerk, so I can tell you they’re very helpful. I spent a lot of time on the phone with them.

 

By its express terms, this code of conduct does not apply to Supreme Court justices. It expressly applies to lower federal court judges. And we will generally today attempt to refer to it as the lower court code or the code of conduct to distinguish from the other code that we’ll be speaking about. While the Court is not obligated to follow the lower court code, Chief Justice Roberts in that 2011 report, other justices since then, many former Supreme Court law clerks have all confirmed that the judges nonetheless have routinely consulted the lower court code and the advisory canons for guidance on the questions that they face. And Congress has enacted laws governing financial reporting requirements and gift limitations.

 

You may have heard some things in this space in the past few months in the media. There is a federal statute. I believe we will hear a little bit more on the federal statutory side of things as we progress through the speaking today. I will note that in addition to the financial reporting requirements and gift limitation statute, there’s a recusal statute. And neither of those two statutes has ever been challenged on separation of powers grounds.

 

With regards to the financial reporting requirements, in 1991 the Court itself adopted an internal resolution agreeing to follow those disclosure and gift regulations. So there’s some interesting open questions in this space. All judges make their recusal decisions individually, under this statute. They apply the statute individually. It’s the same for Supreme Court justices. But in the lower courts, their recusal decisions, while not subject to review by their colleagues, are generally subject to review by the next higher court. For example, a district court judge’s decision not to recuse would be reviewable by the circuit court over that district.

 

Turning to the reason you’re all here, as we all know, one week ago today the Court formally announced its adoption of a code of conduct for justices of the Supreme Court of the United States. We’re going to try to generally refer to this as the Supreme Court Code or SCOTUS Code. It draws from the lower court code but includes a number of notable differences. And I’m going to leave it to Professor Hellman and Mr. Lat to highlight and discuss those, which brings us to the panelists.

 

Their impressive and complete bios are linked on the event webpage, so I will just note that Professor Arthur Hellman of the University of Pittsburgh is a nationally recognized expert on many topics, including as relevant here the federal courts and the Judicial Conduct and Disability Act, which he assisted in drafting. David Lat is a lawyer turned writer who has spent years writing about federal courts generally and SCOTUS in particular. Currently, he publishes Original Jurisdiction, a newsletter in which he has discussed recent SCOTUS ethics questions.

 

Each of our speakers is going to take a few moments to make their introductory remarks. We’re going to have some time for our discussion among the panelists. We will get to audience questions. Please be thinking of your questions. As noted at the top, there is a Q&A function here on Zoom, and that is the place that I will go to look for questions for the panel. So please submit them there. With that, I’ll turn it over to you, Professor Hellman.

 

Prof. Arthur Hellman:  Thank you, Judge Perkins. I’ll get right to it. The Court has actually gotten a lot of flak for what it did and even more for what it did not do in promulgating the code that you referred to. I think much of that criticism is misdirected, and I want to emphasize that because I’m going to be offering some criticisms of my own. Overall, though, I think the Court did a pretty good job, and I have to admit that there was more work to be done in adjusting the code for the lower court judges than I thought there would be because once you get past the obvious prohibitions, you are as the Court said in the realm of discretion and judgment. And that may suggest different outcomes for the Supreme Court than for the lower court judges.

 

In these opening remarks, I’m going to concentrate on matters involving disqualification or recusal, and I’ll be using those two terms interchangeably. The rules involving disqualification are important in themselves—I think that’s pretty obvious—but they also intersect with other provisions of the code in a way that makes them even more interesting. And several things stand out about the Court’s treatment of this important subject, and I’m going to address three points: the relevant texts, the duty to sit, and a provision omitted from Canon 4 that the Supreme Court adopted which deals with extrajudicial activities.

 

So when you read the Court’s own account of the issues relating to disqualification, you could easily get the impression that the only relevant text is the code of conduct for lower court judges. In fact, there’s a second text that’s even more relevant, and Judge Perkins has mentioned it, Section 455 of the Judicial Code. And that section sets out the standards for disqualification for all federal judges, including the justices of a Supreme Court. Now, the justices can tweak the code of conduct for lower court judges to their own liking, but they are bound by Section 455 as Congress enacted it. Now, it’s not a huge deal because the substance of Section 455 largely tracks the code of conduct, but it does set some boundaries. Okay.

 

The duty to sit and the rule of necessity, the Court’s Code refers to the duty to sit and says that the rule of necessity may override the rules of disqualification. Now, neither of those propositions is expressed in Section 455, but I think that the Supreme Court Code is consistent with the way that the lower courts have applied the statute. For example, many courts have said that there’s as much obligation for a judge not to recuse when there is no occasion to do so as there is for him to recuse when there is. So that’s something you see in a lot of opinions.

 

Now, the Supreme Court Code emphasizes that the duty to sit carries greater weight for the Supreme Court because in contrast to other courts a justice who sits out a case cannot be replaced. There is thus the possibility of an equally divided court which means that there is no decision on the merits. Now, you can argue that the Court overstates this point. Recusal is generally case specific, not issue specific, and the Court generally decides recurring issues. And if there’s no decision in case A because the Court is evenly divided, case B will come along the pike, or maybe it’s already there, to enable to Court to resolve that issue. Yes, there’ll have to be another round of briefing and argument and maybe a delay in resolution, so there are some costs to affirmance by an equally divided Court. But we should not exaggerate those.

 

We should also recognize on the other side that many of the recusal rules are overbroad and prophylactic. Consider for example last term’s affirmative action cases. Justice Jackson recused herself from the Harvard case because she had been a member of the Harvard Board of Overseers, but she participated fully in the North Carolina case which ended up being decided by the same opinion as in the Harvard case.

 

Now, does anyone think that Justice Jackson voted as she did because of the Harvard connection rather than because of her own strongly held views about the lawfulness of affirmative action? Of course not. But the justices are bound by Section 455, and for the specific prohibitions which are all in subsection B, the justices have no leeway. For example, recusal is required if the judge has a financial interest, however small, in the subject matter or in one of the parties.

 

So just this morning, the Court denied cert in an important case from a proceeding in the multidistrict litigation -- one of the multidistrict litigation cases. At least two justices would have granted cert of the four that are needed, but Justice Alito took no part. And I assume that’s because the petitioner was DuPont, and Justice Alito owns some DuPont stock. And if I’m reading his financial disclosure forms correctly, his shares are worth less than $15,000. But under Section 455, he was obligated to recuse, and there is nothing the justices wrote in their code or could write in their code that will alter that fact. On the other hand, for subsection A cases—and those are cases where the claims that the justices’ impartiality might reasonably be questioned—as to those, maybe there is some latitude for considering the unique circumstances of the Supreme Court.

 

That brings me to my third point. Canon 4(d)(3) of the code of conduct for lower court judges states this. “As soon as the judge can do so without serious financial detriment, the judge should divest investments and other financial interests that might require frequent disqualification.” Now, that procedure is not included in the code that the Supreme Court just promulgated, and I find that puzzling and troubling. If it is so tremendously uniquely important to have a full bench in every case, you’d think that the justices would be under even more of an obligation than lower court judges to divest from financial investments or interests that might require frequent disqualification.

 

Now, to be fair, the justices’ code does include a general statement that a justice should not participate in extrajudicial activities of any kind that lead to frequent disqualification. And so maybe the justices thought that there was no need for the more specific provision with respect to financial interests. But probably the extrajudicial activity that most often leads to disqualification is stock ownership, so I really would’ve thought that the justices would’ve included this specific directive.

 

Now, why didn’t they? I don’t know, but maybe there’s a clue in a provision that was omitted from the commentary to the lower court code that was the basis for the Supreme Court’s new code. And that commentary includes this sentence. “A judge must expect to be the subject of constant public scrutiny and must accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.” Now, there’s no counterpart to that sentence in the commentary to the Supreme Court Code.

 

Now, here maybe the justices thought that the point is so obvious that it doesn’t require any statement in their own code, but I can’t help wondering if at some level the justices don’t fully subscribe to that position. And if that’s so, it would be quite troubling. I would say to the justices when you take that oath, when you put on the robe, when you enter on a position of great prestige and power, you do accept the relative obligations. And those include giving up some of the freedoms that ordinary citizens have.

 

Now, it’s not many really. It’s not all that much, but there are some. And I hope the justices accept that, and I’ll quote here from the lower court code, “freely and willingly” because it’s something they ought to be willing to do. I’ll stop there and turn the panel over to David.

 

David Lat:  Thank you so much, Professor Hellman, Judge Perkins. It’s great to be here. I will have roughly two parts to my talk. The first is going to be descriptive, supplementing Judge Perkins’ and Professor Hellman’s remarks with additional observations of my own of what’s in and not in the code. And then second, I’ll have a normative section where I’ll offer some opinions about what’s good and not so good about the SCOTUS Code.

 

So as discussed, it was issued one week ago. It consists of 14 pages plus a one-page introductory statement. It’s pretty easy to read. You can sit down and read it for yourself. It does not have an effective date because, as stated in the one-page intro, “The Code largely represents a codification of principles that we have long regarded as governing our conduct.” And as the judge and professor noted, it is adapted from the lower court code that has been in effect for decades.

 

So the introductory statement has this language. “The absence of a code has led in recent years to the misunderstanding that the justices of this court, unlike all other jurists in the country, regard themselves as unrestricted by any ethics rules. To dispel this misunderstanding, we are issuing this Code.” And of course, we all know the backstory on that. Since April or so when ProPublica published an expose about Justice Thomas taking some very fancy vacations with his friend Harlan Crow, there has been this steady drip of various controversies, some call them scandals—I don’t know if I would go that far—regarding the justices and their conduct. And so I think that is what this is addressing.

 

Some people complained about this introductory statement saying that it was somehow condescending or that they wanted the justices to acknowledge and apologize for their past transgressions. I don’t think that that is a realistic expectation to expect the justices to trade their robes for hairshirts. That was not going to happen. The Court is a pretty circumspect institution, and so I really don’t think they were going to be very, very detailed in acknowledging the context. And I also don’t have a problem with them saying that, look, these principles are longstanding, and we’re just putting them all in one place. I don’t think that that is problematic. Some people thought that that was condescending. I don’t find it condescending. If anything, it seems to me an exercise in humility.

 

So the first canon -- and these canons are all mirrored in the lower court code, and the discrepancies occur sort of below the surface. The first canon is “A justice should uphold the integrity and independence of the Judiciary.” This is pretty much the same as it is in the lower court code except they got rid of some language about the indispensability of an independent and honorable judiciary. I don’t think that’s really substantive. I think you could argue that the language in the lower court code is just verbiage really. It also omits a reference to judge maintaining and enforcing high standards of conduct. Here, as discussed and as we will discuss, there’s no enforcement mechanism. So I can see why they got rid of that language.

 

Canon 2 says “A judge should avoid impropriety and the appearance of impropriety in all activities.” Here, there are some modifications. The SCOTUS Code, for example, says that justices should not knowingly lend the prestige of their office to benefit themselves or others. And some critics of the Court like Gabe Roth of the Fix the Court Watchdog organization have criticized this change as saying, well, this is just going to give the justices cover to say I didn’t knowingly violate the rules. I don’t know if that’s really such a problem because I think you could always say you didn’t knowingly violate the rules. This just clarifies that that is a kind of viable defense if you will.

 

I’m guessing it’s aimed at situations where a justice goes to an event and without the justice’s knowledge their attendance is touted somewhere. There may have been some cases involving Justice Thomas where something like that may have happened. It also provides that a justice should not hold membership in any organization that practices invidious discrimination. It has been reported that Justice Thomas attended some gatherings of the all-male Bohemian Grove Club, which is a club for very fancy people. But I believe he just attended. He is not a member, and this provision speaks to membership.

 

Going to Professor Hellman’s point about the language about a judge must expect to be the subject of constant public scrutiny and how that did not make it into the SCOTUS Code even though it’s in the lower court code, my speculation—and this is total speculation—is I wonder if some of the justices chaffed at that language in light of things like protestors coming to their houses. I think that the justices would all agree that because of the prestige and power of their position they are going to be subjected to greater scrutiny. But there may be as to certain things like protestors at your house a sort of we didn’t sign up for this sense of things. So again, this is just spit balling on my part. I don’t know why they didn’t carry over this provision. Maybe that’s one reason.

 

Canon 3 “A justice should perform the duties of office fairly, impartially, and diligently.” There are a couple of little differences. The lower court code contains a duty to report of some sort saying that judges should take appropriate action if they get reliable information that someone, including a fellow judge, may have violated ethics rules. That does not happen here. There is only the statement that the justices will take appropriate action if a court employee is violating the rules.

 

It adds “knowingly” to the requirement that a judge not make public comment on the merits of a matter pending before the court. I wonder whether maybe that’s because of the thousands and thousands of cert petitions the justices get where they might be just giving some public remarks at a speech or at a law school like they often do and somewhere in those thousands of cert petitions is some petition that somehow relates to something. And so I think they’re really trying to say that there’s a knowingness -- there’s kind of a scienter requirement here. And I can understand that again. I don’t think the justices would knowingly discuss a matter that was on the cert docket that they had granted and people were paying attention to. It may just have to do with the cert -- all the many cert petitions.

 

I’m not going to go too deep into the disqualification or recusal rules which Professor Hellman covered very thoroughly, but I would point out an interesting little bit of trivia. So there’s this case before the Court this term, the Loper Bright [sic] case, concerning the continued viability of Chevron. And they just granted a case presenting the exact same issue, Relentless Inc. v. the Department of Commerce -- I kind of like that name. Some people are relentless in their opposition to Chevron. But anyway, they granted this Relentless case. Why? Because presumably Justice Jackson is recused from Loper Bright [sic] because she was on the D.C. Circuit panel. She is not recused from this Relentless case, and so it’s just kind of like the affirmative action cases that Professor Hellman talked about.

 

Canon 4—we’re almost to the end—is “A justice may engage in extrajudicial activities that are consistent with the obligations of the judicial office.” And going to the point that Professor Hellman highlighted about how as soon as the judge can do so without serious financial detriment, they should divest from investments that will create conflict, there have been a whole bunch of situations reported largely by the Wall Street Journal where justices it seems inadvertently fail to recuse from cases involving companies in which they held stock. For the life of me, I really don’t understand why the justices don’t just invest in index funds which most financial planners will tell you is the best thing to do anyway rather than try to pick individual stocks.

 

These people are legal geniuses; they’re not necessarily investment geniuses. I don’t understand why they don’t just go into index funds or if not that mutual funds or blind trusts or things that they don’t manage, which also avoid ethics problems. I just am genuinely confused. This $15,000 in DuPont stock, is that little position really worth recusing from a Supreme Court case? I don’t get it.

 

The code does have, the SCOTUS Code, a line about how they can’t participate in events promoting commercial products or services, so don’t expect to see some justice hawking exercise equipment. There is an exception for books, and we can understand why because it seems that practically every member of the Supreme Court has gotten some six or seven figure book deal. On books, I have one little question here. I query whether maybe we should prohibit advances.

 

I don’t necessarily have a problem with a judge getting royalties from copies of books that were actually sold, but the way an advance works is you give an author a huge amount of money. And there’s an industry practice of not necessarily returning the money if the book doesn’t sell enough copies to generate royalties to “earn out” the advance. I think there is something a little unsavory about giving somebody a giant advance and the book doesn’t really sell. This happened, for example, with former governor Cuomo.

 

So anyway, I just kind of thought that was interesting. But look, on the other hand, the justices have to recuse in cases involving their publishers anyway, so maybe this really is not such a big deal. The SCOTUS Code -- Harlan, I’m on a webinar. Bye-bye. The SCOTUS Code also includes a provision. Harlan, you -- somebody. Sorry, I have a six year old.

 

The SCOTUS Code also has a provision about the justices or judges not attending a fundraising event. Oh, they can attend a fundraising event, but they can’t be the featured guest or a guest of honor. And this is the kind of situation where you have friends who are being honored by some organization and they hit you up to buy a $10,000 table. Judges, justices, they can’t do that.

 

The Washington Post in a staff editorial wondered whether this would affect the justices attending The Federalist Society National Lawyers Convention Gala. I’m not so sure because the definition of a fundraiser is an event whose revenues essentially exceed the costs or if donations are solicited in connection with it. I don’t recall donations being solicited in connection with the FedSoc gala, and I don’t know whether the cost of running it are dwarfed by the proceeds. So I don’t know that that’s necessarily the case that they can no longer go. I hope they can still go because it’s always fun to hear from them there. And so that’s the financial stuff.

 

The lower court code says that a judge should make the required financial disclosures required by statute. The SCOTUS Code says very pointedly that they have for some time agreed to comply with the statute. I think this is sort of like a no waiver provision because Chief Justice Roberts and Justice Alito have at various points said things like, well, separation of powers, it’s not clear that we can be made to follow these laws. And the wording of the SCOTUS Code suggests to me that there’s no change in that view. There’s sort of reservation of rights here.

 

And finally, Canon 5, “A justice should refrain from political activity.” The lower court code contains a definition of political organization. The SCOTUS Code doesn’t. I don’t really know why that’s the case because the definition if you look at the lower court code is pretty straightforward and uncontroversial.

 

Finally, and I don’t want to go too long because I’ve gone longer than I expected. I would just say normatively I think this code is an excellent first step. It’s the first code in the Court’s 234-year history, so they should get credit for issuing it, especially since the legislative efforts to force them to do a code were not going anywhere because of Republican opposition.

 

And second, I think it’s impressive they got unanimity here because unlike deciding a merits case where people can dissent, there were not going to be any dissents from the ethics code. That would really be terrible optics. So you somehow had to get all nine of them, very independent, free-thinking people, to sign onto every word of this 15-page code, so I think they should get some props for that.

 

And finally, I would just say that the lack of the enforcement mechanism doesn’t mean that this code won’t be helpful in empowering watchdogs, journalists, other people to police the conduct of the justices. Now there is something tangible that we can measure their conduct against. And if worse came to worse and the violations were egregious enough, now I would say a concrete violation of the code could constitute a violation of good behavior under the Constitution and could be the basis for impeachment.

 

So again, I think -- and again, there are very significant separation of powers problems with, say, Congress, imposing a code on the justices. And so I think having this code is a big step forward, but it is a first step. And we now need to see how the justices conduct themselves and whether their behavior changes in the wake of the enactment of this code. Thanks.

 

Hon. Jennifer Perkins:  Thank you both. I guess I wanted to see first, Professor Hellman, if you had any follow up based on David’s comments. I just wanted to give you that opportunity before we jump in. But I have a couple of questions also.

 

Prof. Arthur Hellman:  Well, thanks. I’ll just say I agree with just about everything that David said. I thought he put it very well, particularly his point about why the “knowingly” in the provision about public comments about cases. I have to admit that didn’t occur to me. But the justices do emphasize -- the code does emphasize elsewhere a very high number of cert petitions and the fact that -- this will probably startle people that the overwhelming majority of those cert petitions are denied without any justices actually reading any of the cert papers. They rely on the cert pool memo, so that probably does account for that. The other “knowingly” that David mentioned in the provision on -- now, what was that, David, the other?

 

David Lat:  It was about prestige of office.

 

Prof. Arthur Hellman:  Yeah. Lending the prestige of office. But if you look at the cases that have actually come up on that under the judicial misconduct statute, they’re generally cases where “knowingly” wouldn’t have added anything anyway. So I agree with David that maybe it was inserted out of an excess of caution, but it wouldn’t do that.

 

One final point, you speculated about why they did not include a provision about judges are exposed to public criticism and so forth. That’s as plausible as any, but certainly there’s a distinction between criticism and scrutiny on the one hand and harassment on the other. Maybe the justices did feel that the distinction is obvious to them, but maybe for some other people it wouldn’t be.

 

Still, I think they could have put something like that because they do say in the introduction to the commentary that we haven’t put some stuff in from the commentary to lower court judges because not all of it is applicable. So you are left wondering when something is left out is it because it isn’t applicable or is it for some other reason. But with those few caveats, I think David did a fine job of expounding what is in the code, what isn’t, and I agree that it’s a very helpful first step.

 

Hon. Jennifer Perkins:  So I do think that’s kind of a good jumping off point, and I didn’t want to spend too much time before jumping to audience questions. But you had both said a couple of points first step. What is a next step for the Supreme Court? Is there some other action, affirmative thing, that we are looking for, that you are looking for from the Court itself? What do you mean by that?

 

David Lat:  So I think it’s the little things. And for folks who complain that the Court doesn’t seem to care, they do because in the wake of these ethics controversies we’ve seen little tells. We’ve seen little alterations in conduct.

 

So for example, Justice Thomas got an extension on filing his latest financial disclosure, and when he came back, he actually amended a whole bunch of his prior disclosures. And he also included a detailed statement about some of the issues that were raised in media coverage. So actually kind of maybe going back on something I said earlier, I think he did actually address a lot of the current controversies.

 

Chief Justice Roberts had a more detailed disclosure of the income of his wife, Jane Sullivan Roberts, who’s a very successful legal recruiter. There was a complaint that that income had not been properly disclosed as commission-based income, and he clarified that. Even something little like Justice Kagan, for years she’s disclosed rental income. This time around in her disclosure she volunteered that it's rental income from a D.C. parking spot. So there are these little things.

 

One other example, Justice Thomas got some flak for not recusing in some January 6 cases in light of his wife Ginni’s involvement in trying to whatever you would say, overturn the results of the 2020 election. And then lately there was a case involving his former law clerk John Eastman who was involved in such efforts. He recused from the Eastman case even though he hadn’t recused from the other cases. So it’s things like that.

 

The justices just running a little bit of a tighter ship. Justice and Mrs. Thomas maybe skipping the trip to Harlan Crow’s Adirondack’s estate. As I said in my newsletter this weekend, Mr. Crow, you can happily invite me, my husband, and our two kids. We would love to check out your estate if there’s space because the Thomases aren’t there this year. So I think it’s just little things like that.

 

Prof. Arthur Hellman:  I think that’s probably right, and I actually misspoke if I seemed to suggest that the justices collectively are going to do anything more. I don’t think we’re going to see anything more in terms of revised code. We’re not going to see an enforcement mechanism. We can maybe talk about that a little bit later. This is it. They did the one-page statement a few months ago that did not quiet the concerns or the attacks. They’ve now done this. This is a huge step, and with the exception of the sort of implementation kind of things by individual justices that David has mentioned, I do not expect to see anymore collective or institutional moves by the justices.

 

David Lat:  I agree with that comment from Professor Hellman. I would just highlight, though, that at the very end there was a passing, passing reference to the chief justice or the Court directing Court employees and the Office of Legal Counsel to look at best practices surrounding ethics. So they kind of left some wiggle room there. I don’t know that they’re actually going to do anything, but it’s kind of like this catch all/escape valve. Because if somebody says, well, there’s no enforcement mechanism, you say, oh, we’re looking into it. So it’s kind of like the “we’re looking into it” thing. It’s kind of like how -- so I think they kind of preserved their wiggle room there.

 

Prof. Arthur Hellman:  Well, yes. And in fact in that same last paragraph—I’m glad you reminded me of that—they also talk about perhaps better conflict software. I was actually surprised because the implication of what they write there is that they are not now using conflict software that the lower courts are, I believe, all using. And if they’re not, they certainly should be. It’s not infallible. We know that. So you’re right. There are some small things that could come up in the future.

 

Hon. Jennifer Perkins:  So one more point that I just kind of wanted to grapple with before we head over. We’ve already got a few questions in the queue. On the enforcement side, obviously there are some very big questions on what would an enforcement mechanism look like, who would impose an enforcement mechanism, who would be the mechanism.

 

I think there are also some interesting logistical questions. I spent some time as a disciplinary counsel for a state judicial conduct commission, and one of the least satisfying things for members of the public with that commission was an inherent lack of transparency because we could not make every complaint public. Under the rules you couldn’t. And you wouldn’t want that because complaints can be frivolous and targeting.

 

I guess I’m wondering, David, you used the phrase “empowering watchdogs.” But empowering them to what end? I feel like there’s some real concern with empowering watchdogs to file debilitating public records requests and flood the Court with complaints in an attempt to gain more transparency in what to date has been very private information. So I guess I’m just curious about your thoughts on that tension?

 

David Lat:  Really, it’s more of the same in terms of just reporting, which I think you could argue has been a powerful engine in the sense that it was news reporting that led to I think you could argue the adoption of this code, the first one in the Court’s 200 almost 50-year history. But because there is no enforcement mechanism, unlike with the lower courts where you can file some kind of -- where pro se litigants file these random, crazy, unhinged ethics complaints against judges who, say, sent them to prison, there is no one of that for the Supreme Court. And they don’t comply with things like FOIA or what have you. So I think it’s kind of the best of both worlds in the sense that you have this concrete thing. Media organizations, organizations like Fix the Court, they can measure your conduct against them, but nobody is creating a giant new bureaucracy to handle complaints from random people whose cert petitions got denied.

 

Hon. Jennifer Perkins:  Which sounds to me like -- and I think this is probably a good thing -- something that counsels against rushing to create an enforcement mechanism that would provide exactly that. I’m going to start looking at questions in our queue. The first two questions/comments have to do with the duty to decide, and Bill Hodes makes a great point which is that the duty to decide appears in state court or state judicial conduct codes. And it’s a general duty for all judges that your obligation is to decide except when you can’t.

 

So just for the audience, I think that is a good -- it kind of answers a little bit Robert Levy’s question is there a duty to sit? Yeah. Judges have a duty to do their job. That’s effectively what that is, except when you can’t. And the discussion here is really more about moving that line a little bit because of the unusual nature of the Supreme Court. I don’t know if either of you have any -- if you’ve seen those questions or if you have any comments on that before I move on to the others.

 

Prof. Arthur Hellman:  Well, the only thing I’ll mention is that there’s some language actually in the authoritative House report on what is now Section 455 that says that there used to be a duty to sit under the old statute and there isn’t now. Now, I have to say I have difficulty reading the old statute as saying there was, and I have difficulty reading this statute as saying there isn’t. So a number of people have attacked the code on that specific ground, saying that the Court invented this duty to sit. It’s not in 455.

 

I think the question is more complex than that, but as the comments you’ve quoted indicate, I think the Court has come to the right place on that. I think it is consistent with the statute. And again, as the lower courts keep saying, if you are not disqualified, you are supposed to sit. That’s your job after all, and you can’t sit it out either because you don’t like the case or because you think you’re going to be criticized for sitting on it -- criticized unjustifiably.

 

Hon. Jennifer Perkins:  So our next question is do either of you see the Supreme Court Code as having any language that would address or target in any way the leak of the draft Dobbs opinion?

 

David Lat:  The only provision that I noticed was that duty to report one, which says that you’re supposed to report misconduct by Court employees. I actually do not believe the code has anything specific about law clerk duties of confidentiality, which are, I think, reflected in separate documents somewhere in the federal government. Professor Hellman?

 

Prof. Arthur Hellman:  I did not see anything that jumped out at me as bearing upon the law clerk leak. It’s an interesting point, though. You’d think they might’ve put something in there, but I supposed they’re just baffled the way the rest of us are.

 

David Lat:  So I’m looking at it now, so Canon 3. It does require justices to maintain order and decorum in judicial proceedings. And I think you could argue that having a draft opinion leaked is sort of a violation of order and decorum. And it says a justice should take appropriate action upon receipt of reliable information indicating the likelihood of misconduct by a court employee, sort of these similar breaches of order and decorum. So that’s what I would guess, but there is nothing explicit about -- there’s nothing where you can read that and kind of say that’s a Dobbs provision.

 

Prof. Arthur Hellman:  And the provisions on reporting misconduct are in the lower court code, and indeed they were significantly strengthened in the wake of the sexual misconduct allegations that prompted the most recent revision both of the code of conduct and of the judicial misconduct statute -- I’m sorry, judicial misconduct rules. So there’s some very, very strong language in those. But it’s the same generic problem but a very different factual context.

 

Hon. Jennifer Perkins:  So we have two questions about kind of related to the controversies, whatever you want to call them, leading to this, especially with regards to hospitality and gifts -- asking if you want to address that. In particular, are there rules here that would have prohibited any of the alleged activity or reported activity? And I guess what kind of restrictions do we now see under the code? Is there something distinct about what we see in the code from what came before? I’ll just note here again that the financial disclosures and gift restrictions appear in the federal statute, and so the code is the sort of ethical component, not the restrictive component. But with having said that, if either of you have any thoughts on those.

 

Prof. Arthur Hellman:  I don’t think the code addresses the personal relationships other than the no extrajudicial activities that would cause people to bring the Judiciary into disrepute or to cause frequent disqualification. As you say, the disclosure requirements are dealt with separately in the statute. And I think that the Court would be understandably reluctant in constraining the social activities of its members just as the lower court code does not do that.

 

David Lat:  So I agree with that -- I agree with Professor Hellman they’re not out there to be substantively policing friendships. But I just want to find the exact language. The SCOTUS Code does say “A justice should comply with the restrictions on acceptance of gifts and the prohibition on solicitation of gifts set forth in the judicial conference regulations on gifts now in effect.”

 

So you can look up those regulations. I was recently looking at them. I don’t -- they’re not particularly onerous, and they would not really necessarily have blocked any of the things that people have problems with. So basically the regulations that govern lower court judges which now the Supreme Court justices in the SCOTUS Code have said we should comply with, they don’t allow you to solicit gifts from people expecting official action. That seems pretty obvious. They don’t allow you to accept gifts from people with business before the Court.

 

But let’s say you have a Harlan Crow situation. You have somebody who has no cases before the Court. They’re a longstanding friend. They’re giving you something. You have no reason to believe that it is to influence your behavior or for any other improper purpose. You can accept that gift as I read the gift regulations. It’s just that now you are subject to disclosure, and the lower court limit for folks who are wondering -- there is a dollar limit. It is generally $415. So some of this largesse from Harlan Crowe is worth more than $415, and so maybe now you do have to disclose that.

 

But if you look at the regulations, there are exceptions for personal hospitality and that. So I’m not even necessarily sure about that. But say somebody leant you a large amount of money to buy a recreational vehicle and then perhaps forgave that debt and turned that loan into a gift, I think that that would have to be reported. It’s way over the $415 threshold. It doesn’t mean you can’t accept it, especially if it’s a preexisting friend with no business before the Court, but you do have to disclose it.

 

And I actually don’t have a problem with it. If people listen to my FedSoc panel or the panel I was on at FedSoc about the originalist perspectives on Supreme Court ethics, I actually -- and my husband and I actually wrote a piece for the Atlantic about this too. We think that the disclosure requirements should be more robust, but I don’t necessarily think that we need to enact many more substantive regulations on the justices’ friendships, say.

 

Prof. Arthur Hellman:  I’m in complete agreement with that, and the corelative point that I think is often lost sight of and that distinguishes the justices from many other actors in Washington, particularly members of Congress, is that every official action the justices take is public. It’s public when they deny certiorari in a case. It’s public if a justice issues a one justice order extending the time to file a petition for certiorari. Every order that affects a case in any way is on the public docket of the Court.

 

So if you have disclosure requirements, those together with the public reporting of the decisions are a pretty strong barrier against any kind of misbehavior. If you have a huge gift from somebody who has business before the Court, that’s going to be disclosed, and of course that won’t happen because the justice knows that he or she should not be accepting such gifts and won’t do it. So I think in that sense the system is a lot stronger than people give it credit for. You have the combination of disclosure of gifts and open public reporting of everything that every justice does that might possibly be a quid pro quo. In other words, you have the quids and the quos, and they’re both public.

 

David Lat:  One fun fact I just wanted to mention on this subject, jet travel. So before the SCOTUS Code, months before, regulations were revised to clarify that even under the personal hospitality exception to reporting, you do have to report private jet travel. Justice Thomas acknowledged that in his recent disclosures saying this was not the case before. Now it is. I will comply with it.

 

But here’s a fun fact that a lower court judge told me if you really dive into the regs. So obviously it’s not a gift if you pay for it. So if the private jet costs all this money but you pay for your fare on the private jet, that’s fine. But here’s one way you can actually get around -- there’s maybe some federal judges listening. This may be useful.

 

There is a way to get around the private jet reporting requirement. If you pay the cost of first-class commercial travel between the relevant destinations, you do not have to report the private jet travel. That is apparently -- double check me on this, but a very smart federal judge and a very ethical federal judge told me this case. Now, look, -- this is the case. Now look, a first-class ticket is kind of expensive, and they’re making less than midlevel associates. So maybe they don’t want to do that. But if you want to escape the reporting requirement, cough up the couple grand and pay your host, your private jet friend for the cost of a first-class commercial fare.

 

Prof. Arthur Hellman:  Now, you were suggesting there may be some federal judges who are listening.

 

David Lat:  Maybe.

 

Prof. Arthur Hellman:  If the federal judges who are members of the code of conduct committee are listening to this, they may be thinking about revising the code of conduct and closing that loophole. So it may not be around for all that long.

 

David Lat:  Oops. Sorry to ruin a good thing.

 

Hon. Jennifer Perkins:  So we have an anonymous contributor who pointed out that reading the appearance at fundraiser as guest of honor provision read literally could mean that a justice could not be the speaker at, say, the American Bar Association or a state bar association dinner if the event is likely to result in positive revenue over expenses as opposed to -- so I guess I wonder if you think maybe a better textual reading -- or maybe that’s the best textual reading. Or is it a better textual reading that something has to be billed as a fundraiser, that the announced and stated purpose as opposed to, well, look, we invited sponsorships to cover the cost and it turns out that that netted revenue?

 

I’m wondering if you have any thoughts on how technical or how strict that provision is because it does seem to be the kind of thing that if we were expecting to limit the access of members of the profession to hear from federal learned judges and in particular Supreme Court justices, that would be a net negative in terms of benefits to the profession.

 

David Lat:  So my response is I’m guessing it’s intended as a totality of the circumstances test because if you look at the wording -- and now we have a code we can actually dive into these words. If you look at the wording it says “In general, an event is a “fundraising event” if proceeds from the event exceed its costs or if donations are solicited in connection with the event.” In general -- so if you have an event and you’re trying to incorporate the costs of the tickets -- the cost of the event into the tickets but you err and you end up with a couple hundred bucks surplus, that I do not think is a fundraising event because you made a bad calculation and your revenues from tickets exceeded your costs.

 

And I get what this is aimed at because I’ve been to a bunch of these in the past couple of weeks. We have a lot of them in the New York tristate areas, these fundraising events where a charitable organization gets like 50 percent of its budget from some annual gala where you buy a $10,000 table. And they honor very fancy people with rich friends, and then the people reach out. And I’m not really the rich friend, but they’ll say hey David, I’m honored by this organization. Will you attend and buy a $1,000 ticket? That is a fundraising event.

 

And then what’s interesting -- what you can do when you’re invited to these by your friends is I always email the person who’s running the fundraising event and say what portion of this is tax deductible because of that $1,000 ticket what’s a donation to the organization -- these are usual 501(c)3s -- is tax deductible. And so that’s a fundraising event where there’s a big surplus in the -- and you can claim a tax write off. I think, again, if you accidentally got your calculations wrong, I don’t think that’s a fundraising event.

 

 

Hon. Jennifer Perkins:  We are winding down our time and have more questions than I can get to. I’m going to ask for a quick hit on one. Is a justice considered a court employee?

 

David Lat:  I believe no.

 

Prof. Arthur Hellman:  I don’t think so, no.

 

Hon. Jennifer Perkins:  Agree. And then the last two questions submitted I’m going to give you, David, in particular a chance to respond because the question asks many of David Lat’s comments make it appear that the primary impetus driving adoption of this code of conduct was targeting Justice Thomas and his activities. Is that true? And we have another question is there a double standard? Are Justices Thomas and Alito being singled out when other justices have accepted the generosity of wealthy friends or have promoted books, etc.?

 

David Lat:  Yeah. I’ll be honest. I do think that there is a double standard. Check out the Twitter feed or X feed of Mark Paoletta. He is a prominent conservative lawyer and a friend of the Thomases. Mark actually highlights a bunch of cases where perhaps there has been some targeting. And he also notes cases where liberal justices did similar things and didn’t get in any kind of trouble and there was no uproar.

 

So again, I supported the ethics adoption of this SCOTUS Code, and if you listen to that FedSoc NLC panel, I was the only panelist who advocated this. And the other panelists were very strong in the view that this was done to target conservative justices. I think there’s some truth to that in terms of the media coverage targeting conservative justices, but on the other hand I think it is a good thing that the Court has adopted this code.

 

Hon. Jennifer Perkins:  One last question I’ll take regarding membership in organizations that engage in invidious discrimination, are we assuming this requires a judge to resign from a single sex sorority or fraternity? I believe single sex schools are affirmatively permitted under federal law. David, you had highlighted the single sex I think it was a dinner -- organization that threw a dinner. What are your thoughts on that?

 

David Lat:  That’s a tough one because notice the word “invidious” has to be doing some work there. Again, I love now that we have this language. So you do have to wonder about that. I think the paradigmatic case is these ritzy clubs in major cities that have these beautiful old buildings and that have a history of not having female members, Black members, members who -- that is probably the core -- the gravamen of -- that’s probably the big deal here. I’m not as sure about fraternities and sororities. Maybe that would actually have to be -- well, there’s no enforcement mechanism. I would say it’d be litigated. Well, not really. But so I guess my answer to the question if this were a deposition, I don’t know.

 

Prof. Arthur Hellman:  I’ll just add there’s one judicial misconduct complaint that deals with that provision in the lower court code. I think it’s actually in some ways an unfortunate decision. It doesn’t include -- it wasn’t about sororities or fraternities. But David is absolutely right that the word “invidious” is in there for a reason, and it is designed to leave some room for “discriminatory” organizations that are not invidious, whatever that might mean. But there are some that are invidious. That’s the natural inference from the language; isn’t it, David?

 

Davit Lat:  Yup.

 

Hon. Jennifer Perkins:  Well, I see we’re heading to the top of the hour. I guess I’ll turn it back over to you, Jack.

 

Jack Capizzi:  Thank you, Judge Perkins. Well, on behalf of The Federalist Society, I want to thank Mr. Lat and Professor Hellman for sharing their time with us today and of course to you, Judge Perkins, for moderating the discussion. As always, a recording of this will be posted on our website, YouTube channel, and podcast feed in the next few days.

 

And if you’re interested, a link to the recent National Lawyers Convention panel that David was a part of mentioned throughout this program is also available on our site, which I highly recommend checking out. As always, we do welcome listener feedback by email at [email protected]. And with that, thank you all very much for joining us today, and I hope you all have a wonderful Thanksgiving. We are adjourned.