Insights on the Supreme Court's New Ethics Guidelines

On November 13, 2023, the Supreme Court formally announced a Code of Conduct, a significant development encapsulated in a 14-page document outlining five canons of conduct. Addressing issues such as judicial recusal and permissible outside activities, the Code consolidates ethical rules guiding the Court's members. This webinar assembles a panel of Supreme Court and Legal Ethics experts to delve into the nuances of the Code, exploring surprises within its text and elucidating its implications for the Court's future.
The release of a Code coincides with the Professional Responsibility & Legal Ethics Practice Group's sponsorship of a National Lawyers Convention breakout panel titled "Originalist Perspectives on Ethics and the Supreme Court." The discussion, held just days before the Code's unveiling, pondered the necessity of an Ethics Code for the Supreme Court and foreshadowed lingering questions for the Court. A recording is available here.
Featuring:

Prof. Arthur Hellman, Professor of Law, University of Pittsburgh School of Law
David Lat, Founder, Original Jurisdiction
Moderator: Hon. Jennifer Perkins, Arizona Court of Appeals, Division One

Episode Transcript

(00:01):
Welcome to TeleForm, a podcast ofthe Federal Societies Practice Groups. I'm Nate
cas Berrett, Vice President and Directorof Practice Groups at the Federal Society.
For exclusive access to live recordings andpractice group TeleForm programs, become a Federal
Society member today at fedsoc dot org. Well, hello, and welcome to
today's Federalist Society Virtual event. Thisafternoon, Monday, November twentieth, we

(00:25):
are discussing insights on the Supreme Court'srecently announced code of conduct. My name
is Jackie Peazi and I'm an assistantdirector of Practice Groups at the Federalist Society.
As always, please note that allexpressions of opinion are those of the
experts on today's call. After ourspeakers have given their remarks, we will
turn to you, the audience,for any questions you might have. If
you do have a question at anypoint, please type it into the Q

(00:48):
and A function at the bottom ofyour 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 itover to our moderator, Jennifer Perkins,
who is a judge on the ArizonaCourt Appeals for Division one. With that,
thank you all again for being withus. Judge Perkins over to you.
Thank you, Jack, and thankyou to the Federal Society and our
panelists for joining us today. Thankyou to all of those who have logged

(01:12):
in. I can see that participantnumber ticking up a little bit as we
as we get started. So Ijust wanted to take a brief moment to
walk through some of the history thatis related to federal courts and judicial conduct
directives. This is not intended tobe comprehensive, and my purpose here is
not to provide a background of judicialethics written large in part as mister Latt

(01:34):
is quite familiar, the Federal SocietyJeff held a panel discussion on originalist perspective
and ethics on the Supreme Court inwhich the figures covered a great deal of
that territory. I recommend watching orlistening to that recording if you have an
opportunity. So here's my not socomprehensive brief history of SCOTUS and ethics regulations.

(01:56):
The Federal Judicial Oath of Office hassince seventeen eighty nine included commitments to
administer justice without respect to persons,to do equal right to the poor and
to the rich, and to faithfullyand impartially discharge and perform the duties of
judicial office. But, as ChiefJustice Roberts acknowledged in his twenty eleven year

(02:16):
end report, for one hundred andthirty 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 scandalinvolving the Chicago White Sox and allegations of
the attempt to fix the nineteen nineteenWorld Series. Team owners thereafter chose Federal

(02:38):
District Judge Kennesaw Mountain Landis to serveas the Commissioner of Baseball in an effort
to restore confidence and purge corruption inbaseball. But that prompted the interesting question
of whether Judge Landis could simultane simultaneouslyserve on the bench and as Baseball Commissioner.
He solved the problem by resigning hisjudicial position, but the question lingered.

(03:00):
Chief Justice Taft thereafter chaired a commissionon Judicial ethics convened by the American
Bar Association in nineteen twenty two,which resulted in the nineteen twenty four Canons
of Judicial ethics. These advisory guidelinesthereafter aided judges and answering difficult ethical questions.
They weren't guidelines, but also innineteen twenty two, Congress formed the

(03:23):
Judicial Conference of the United States,which includes the chief Chief Judge of every
federal circuit and a district judge fromeach circuit. The Judicial Conference promulgated and
periodically revises the Code of Conduct forUnited States judges and advises judges and judicial
employees on application of the code provisions. I spent a year as a federal

(03:45):
district court judge's first law clerk,so I can tell you they're very helpful.
I spent a lot of time onthe phone with them. By its
express terms, this Code of Conductdoes not apply to Supreme Court justices.
Expressly applies to lower federal Court judges, and we will generally today attempts to
refer to it as the lower CourtCode or the Code of Conduct, to

(04:08):
distinguish from the other code that we'llbe speaking about. While the Court is
not obligated to follow the lower Courtcode. Chief Justice Roberts in that twenty
eleven report, other justices since then, many former Supreme Court law clerks have
all confirmed that the judges nonetheless haveroutinely consulted the Lower Court Code and the
Advisory Canons for guidance on the questionsthat they face, and Congress has enacted

(04:31):
laws governing financial reporting requirements and giftlimitations. You may have heard some things
in this space in the past fewmonths and the media. There is a
federal statute. I believe we willhear a little bit more on the federal
statutory side of things as we progressthrough the Speaking today, I will note
that in addition to the financial reportingrequirements a gift limitations statute, there's a

(04:55):
recusal statute, and in neither ofthose two statutes has ever been challenged on
separation of powers grounds. With regardto the financial reporting requirements. In nineteen
ninety one, the Court itself adoptedan internal resolution agreeing to follow those disclosure
and gift regulations. So there's someinteresting open questions in this space. All

(05:16):
judges make their recusal decisions individually underthis statute. They apply the statute individually.
It's the same for Supreme Court justices, but in the lower courts,
their recusal decisions, while not subjectto review by their colleagues, are generally
subject to review by the next highercourt. For example, of district Court's

(05:38):
judges decision not to recuse would bereviewable reviewable by the Circuit court over that
district. Turning to the reason you'reall here, As we all know,
one week ago today, the Courtformally announced its adoption of a code of
conduct for justices of the Supreme Courtof the United States. We're going to
try to generally refer to this asthe Supreme Court Code ortis code. It

(06:00):
draws from the lower Court code,but includes a number of notable differences,
and I am going to leave itto Professor Hellman and mister Latt to highlight
and discuss those which brings us tothe panelists. Their impressive and complete bios
are linked on the event web page. So I will just note that Professor
Arthur Hellman of the University of Pittsburghis a nationally recognized expert on many topics,

(06:21):
including, as relevant here, thefederal courts and the Judicial Conduct and
Disability Act, which he assisted indrafting. David Latt is a lawyer turned
writer who has spent years writing aboutfederal courts generally and Scotis in particular.
Currently, he publishes original jurisdiction anewsletter in which he has discussed recent Scotis
ethics questions. Each of our speakersis going to take a few moments to

(06:44):
make their introductory remarks. We're goingto have some time for our discussion among
the panelists. We will get toaudience questions. Please be thinking of your
questions. As noted at the top, there is a Q and a function
here on zoom, and that isthe place that I will go to look
for questions for the panel. Pleasesubmit them there. With that altern it
over to you, Professor Hellman.Thank you, Judge Perkins. I'll get

(07:08):
right to it. The Court hasactually gotten a lot of flack for what
it did and even more for whatit did not do in promulgating the code
that you referred to. I thinkmuch of that criticism is misdirected, and
I want to emphasize that because I'mgoing to be offering some criticisms of my

(07:28):
own. Overall, though, Ithink the Court did a pretty good job,
and I have to admit that therewas more work to be done in
adjusting the code for the lower Courtjudges than I thought there would be,
because once you get past the obviousprohibitions. You are, as the Court

(07:49):
said, in the realm of discretionand judgment, and that may suggests different
outcomes for the Supreme Court than fromthe for the lower Court judges. In
these opening remarks, I'm going toconcentrate on matters involving disqualification or recusal,

(08:11):
and I'll be using those two termsinterchangeably. The rules involving disqualification are important
in themselves, I think that's prettyobvious, but they also intersect with other
provisions of the Code in a waythat makes them even more interesting. And
several things stand out about the Court'streatment of this important subject. And I'm

(08:31):
going to address three points. Therelevant texts, the duty to sit,
and a provision omitted from the Canonfour of the Supreme Court adopted, which
deals with extra judicial activities. Sowhen you read the Court's own account of

(08:52):
the issues relating to disqualification, youcould easily get the impression that the only
relevant text is the Code of Conductfor Lower Court Georges. In fact,
there's a second text that's even morerelevant, and Gregor Perkins has mentioned a
section four point fifty five of theJudicial Code, and that section sets out

(09:13):
the standards for disqualification for all federaljudges, including the justices of a Supreme
Court. Now, the justices cantweak the Code of Conduct or lower court
judges to their own liking, butthey are bound by Section four point fifty
five as Congress enacted it. Now, that's not a huge deal because the
substance of Section four fifty five largelytracks the Code of Conduct, But it

(09:39):
does set some boundaries, okay,the of duty to sit and the rule
of necessity. The Court's Code refersto the duty to sit and says that
the rule of necessity may override therules of disqualification. Now, neither proposition
neither of those positions is expressed insection four fifty five. But I think

(10:03):
that the Supreme Court Code is consistentwith the way that the lower courts have
applied the statute. For example,many courts have said that there is as
much obligation for a judge not torecuse when there is no occasion to do
so as there is for him torecuse when there is. So that's something

(10:26):
you see in a lot of opinions. Now, the Supreme Court Code emphasizes
that the duty to sit carries greaterweight for the Supreme Court, because,
in contrast to other courts, ajustice who sits out a case cannot be
replaced. There is thus the possibilityof an equally divided court, which means

(10:48):
that there is no decision on themerits. Now, you can argue that
the court overstates this point. Recusalis 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 isevenly divided, case B will come along

(11:11):
the pike, or maybe it's alreadythere to enable the court to resolve that
issue. Yes, they are goingto be have to be another round of
briefing, an argument, and maybea delay in resolution. So there are
some costs to affirmans by an equallydivided court, but we should not exaggerate
those. We should also recognize,on the other side, that many of

(11:33):
the recusal rules are overbroad and prophylactic. Consider, for example, less terms
affirmative action cases. Justice Jackson recusedherself from the Harvard case because she'd been
a member of the Harvard Board ofOverseers, but she participated fully in the
North Carolina case, which ended upbeing decided by the same opinion as in

(11:56):
the Harvard case. Now, doesanyone think that Justice Jackson voted as she
did because of the Harvard connection ratherthan because of her own strongly held views
about the lawfulness of affirmative action.Of course not. But the justices are
bound by Section four point fifty five, and for the specific prohibitions, which

(12:22):
are all in Section subsection B,the justices have no leeway. For example,
recusal is required if the judge hasa financial interest, however small,
in the subject matter or in oneof the parties. So just this morning,
the Court denied sert in an importantcase from a proceeding, and in

(12:43):
the multi district litigation, one ofthe most multi district litigation cases, at
least two justices would have granted certof the four that are needed, but
Justice Alito took no part. AndI assume that's because the petition was DuPont
and Justice Alito owns some DuPont stock, and from reading his financial disclosure forms

(13:07):
correctly, his shares are worth lessthan fifteen thousand dollars. But under Section
four point fifty five he was obligatedto refuse. And there is nothing the
justices wrote in their code or couldwrite in their code that will alter that.
On the other hand, for SubsectionA cases, and those are cases

(13:28):
where the claim is that the justice'simpartiality might reasonably be questioned. As to
those, maybe there is some latitudefor considering the unique circumstances of the Supreme
Court. That brings me to mythird point. There's a kind of four
D three of the Code of Conductfor lower court judges state sifts. As

(13:52):
soon as the judge can do sowithout serious financial detriment, the judge should
divest investments and other financial interests thatmight require frequent disqualification. Now that procedure
is not included in the court inthe code that the Court the Supreme Court
just promulgated, and I find thatpuzzling and troubling. If it is so

(14:18):
tremendously uniquely important to have a fullbench in every case, you think that
the justices would be under even moreof an obligation than lower court judges to
divest from financial investments or interests thatmight require frequent disqualification. Now to be

(14:41):
there, the Justice Code does includethe general statement that the Justice should not
participate in extra judicial activities of anykind that lead to frequent disqualification. And
so maybe the Justices thought that therewas no need for the mo or specific
provision with respect to financial interests.But probably the extra judicial activity that most

(15:07):
often leads to disqualification is stock ownership. So I really would have thought that
the Justices would have included this specificdirection. Now why didn't they, I
don't know, But maybe there's aclue in a provision that was omitted from
the commentary and the commentary to theLower Court Code that was the basis for

(15:35):
the Supreme Court's new code, andthat commentary includes this sentence, the judge
must be much expect to be thesubject of constant public scrutiny, and must
accept freely and willingly restrictions that mightbe viewed as burdensome by the ordinary citizen.

(15:56):
Now there's no counterpart to that sentencein the commentary to the Supreme Court
Code now Here. Maybe the Justicesthought that the point is so obvious that
it doesn't require any statement in theirown code. But I can't help wondering
if at some level the Justices don'tfully subscribe to that position. And if

(16:23):
that's so, it would be quitetroubling, because I would say to the
Justices. When you take that oath, when you put on the road,
when you enter on a position agreat prestige and power, you do accept
correlative obligations, and those include givingup some of the freedom freedoms that ordinary

(16:47):
citizens have now not many, really, it's not all that much, but
there are some. And I hopethe justices accept that a quote here from
the Lower Court Code freely and willingly, because it's something they ought to be
willing to do. I'll stop thereand turn the panel over to data.

(17:11):
Thank you so much, Professor Hellman, Judge Perkins, it's great to be
here. I will have roughly twoparts to my talk. The first is
going to be descriptive, supplementing JudgePerkins's and Professor Hellman's remarks, with additional
observations on my own of what's inand not in the code. And then
the second I'll have a normative sectionwhere I'll offer to some opinions about what's

(17:32):
good and not so good about theScotus Code so as discussed. It was
issued one week ago. It consistsof fourteen pages, plus a one page
introductory statement. It's pretty easy toread. You can sit down and read
it for yourself. It does nothave 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 governingour conduct, and as the Judge and

(17:56):
professor noted, it is adapted fromthe Lower Court code that has been in
effect for decades. So the introductorystatement has this language. The absence of
a code has led in recent yearsto the misunderstanding that the justices of this
Court, unlike all other jurists inthe country, regard themselves as unrestricted by
any ethics rules. To dispel thismisunderstanding, we are issuing this code,

(18:21):
and of course we all know thebackstory on that. Since April or so
and Pro Publica published and expose aboutJustice Thomas taking some very fancy vacations with
his friend Harlan Crowe, there hasbeen this steady drip of various controversies,
some call them scandals. I don'tknow if I would go that far regarding
the justices and their conduct, andso I think that is what this is

(18:42):
addressing. Some people who complained aboutthis introductory statement, saying that it was
somehow condescending or that they wanted thejustices to acknowledge and apologize for their past
transgressions. I don't think that thatis a realistic expectation to expect the job
justice is to trade their robes forhairshirts. That was not going to happen.

(19:03):
The cod is a pretty circumspect institution, and so I really don't think
they were going to be very verydetailed in acknowledging the context. And I
also don't have a problem with themsaying that, look, these principles are
long standing and we're just putting themall in one place. I don't think
that that is problematic. Some peoplethought that that was condescending. I don't
find it condescending of anything. Itseems to me an exercise in humility.

(19:26):
So the first canon, which andthese canons are all mirrored in the Lower
Court Code, and the discrepancies occursort of below the surface. The first
canon is a justice should up pullthe integrity and independence of the judiciary.
This is pretty much the same asit is in the Lower Court Code,
except they got rid of some languageabout the indispensability of an independent and honorable

(19:48):
judiciary. I don't think that's reallysubstantive. I think you could argue that
the language in the Lower Court codeis just verbiage. Really. It also
omits a reference to judges maintaining andenforcing high standards of conduct here as discussed
and as we will discuss, there'sno enforcement mechanism, so I can see
why they got rid of that language. Canon too, says a judge should
avoid impropriety and the appearance of improprietyin all activities. Here there are some

(20:12):
modifications. The COTUS Code, forexample, says that justices should not knowingly
lend the prestige of their office tobenefit themselves or others, and some critics
of the court, like Gabe Rothof the Fix the Court Watchdog Organization of
criticized his change as saying, well, this is just going to give the
justices cover to say I didn't knowinglyviolate the rules. I don't know if

(20:33):
that's really such a problem, becauseI think you could always say you didn't
knowingly violate the rules. This justclarifies that that is a kind of viable
defense, if you will. I'mguessing it's aimed at situations where a justice
goes to an event and without thejustices knowledge, their attendance is touted somewhere
there may have been some cases involvingJustice Thomas where something like that may have

(20:55):
happened. It also provides that ajustice should not hold membership in a discrimination
or any organization that practices invidious discrimination. It has been reported that Justice Thomas
attended some gatherings of the all maleBohemian Grove Club, which is a club
for very fancy people. But Ibelieve he just attended. He is not
a member, and this provision speaksto membership. Going to Professor Hellman's point

(21:18):
about the language about a judge whomust be must expect to be the subject
of constant public scrutiny, and howthat did not make it into the Scotus
Code even though it's in the LowerCourt Code, my speculation, and this
is total speculation, is I wonderif some of the justices shaped at that
language in light of things like protesterscoming to their houses. I think that
the justices would all agree that becauseof the prestige and power of their positions,

(21:42):
they are going to be subjected togreater scrutiny. But there may be
as to certain things like protesters atyour house, a sort of we didn't
sign up for this sense of things. So again, This is just spitballing
on my part. I don't knowwhy they didn't carry over this provision.
Maybe that's one reason Canon three.A justice should perform the duties of office
fairly, impartially, and diligently.There are a couple of little differences.

(22:04):
The Lower Court Code contains a dutyto report of some sort, saying that
judges should take appropriate action if theyget reliable information that someone, including a
fellow judge, may have violated ethicsrules. That does not happen here.
There is only the statement that thejustices will take appropriate action if a court
employee is violating the rules. Itadds knowingly to the requirement that a judge

(22:27):
not make public comment on the madon the merits of a matter pending or
impending before the court. I wonderwhether maybe that's because of the thousands and
thousands of certain petitions the justices get. Where they might be just giving some
public remarks at a speech or ata law school, like they often do,
and somewhere in those thousands of certainpetitions is some petition that somehow relates

(22:48):
to something, And so I thinkthey're really trying to say that there's a
knowingness there's kind of a center requirementhere, and I can understand that.
Again, I don't think the justicethis is would knowingly discuss a matter that
was on the cert docket that theyhad granted and people were paying attention to.
It may just have to do withthe curt all the many certain petitions.

(23:12):
I'm not going to go too deepinto the disqualification or recusal rules,
which Professor Hellman covered very thoroughly,but I would point out only interesting little
bit of trivia. So there's thiscase before the court this term the Lopez
Bright case concerning the continued viability ofChevron, and they just granted a case
presenting the exact same issue, Relentlessink the Department of Commerce. I kind

(23:33):
of like that name. Some peopleare relentless in their opposition to Chevron.
But anyway, they granted this relentlesscase. Why because presumably Justice Jackson is
recused from Lopez Bright because she wason the DC 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 talkedabout. Canon four, we're almost to
the end. Is a justice mayengage in judicial activities that are consistent with

(23:57):
the obligations of the judicial office,and going to the point that Professor Hellman
highlighted about, how as soon asthe judge can do so without serious financial
detriment, they should divest from investmentsthat will create conflicts. There have been
a whole bunch of situations reported largelyby the Wall Street Journal, where Justice
seems inadvertently failed to recuse from casesinvolving companies in which they held stock.

(24:22):
For the life of me, Ireally don't understand why the justices don't just
invest in index funds, which mostfinancial planners will tell you is the best
thing to do anyway, rather thantrying to pick individual stocks. These people
are legal geniuses, they're not necessarilyinvestment geniuses. I don't understand where they
don't just go into index funds,or if not that mutual funds or blind
trusts or things that they don't managewhich also avoid ethics problems. I just

(24:47):
am genuinely confused. This fifteen thousanddollars in DuPont stock is Is that little
position really worth refusing from a SupremeCourt case? I don't get it.
The code does have the Scotus Codea line about how they can'tticipate in events
promoting commercial products or services, sodon't expect to see some justice hawking exercise

(25:07):
equipment. There is an exception forbooks, and we can understand why because
it seems that practically every member ofthe Supreme Court has gotten some six or
seven figure book deal on books.I have one little question here query whether
maybe we should prohibit advances. Idon't necessarily have a problem with a judge
getting royalties from copies of books thatwere actually sold. But the way an
advance works is you give an authora huge amount of money, and there

(25:30):
is an industry practice of not necessarilyreturning the money if the book doesn't sell
enough copies to generate royalties to quoteunquote earn out the advance. I think
there is something a little unsavory aboutgiving somebody a giant advance and the book
doesn't really sell. This happened,for example, with former Governor Cuomo,
So anyway, I just kind ofthought that was interesting. But look,
on the other hand, the justiceshave to recuse in cases involving their publishers

(25:53):
anyway, so maybe this really isnot such a big deal. The Scotus
Code Harlan, I'm on a webinar. Bye bye. The Scottis Code also
includes a provision Harlan, you somebodysorry, I have a six year old.
The Scotus Code also has a provisionabout the justices or just judges not
attending a fundraising event. Oh,they can't attend a fundraising event, but

(26:18):
they can't be the featured guest ora guest of honor. And this is
the kind of situation where you havefriends who are being honored by some organization
and they hit you up to,you know, buy a ten thousand dollars
table. Judges, justices, theycan't do that. The Washington Post,
in an editorial from a staff editorial, wondered whether this would affect the justices
attending the Federalist Society National Lawyers Conventiongala. I'm not so sure, because

(26:40):
the definition of a fundraiser is anevent who whose revenues essentially exceed the costs,
or if donations are solicited in connectionwith it. I don't recall donations
being solicited in connection with the fedSAW gala, And I don't know whether
it's a cost the cost of runningit. You know, our dwarfed by
the proceeds. So I don't knowthat that's necessarily the case that they can

(27:03):
no longer go. I hope theycan still go, because it's always fun
to hear from them there. Andso that that's the financial stuff. The
Lower Court Code says that a judgeshould make the required financial disclosures required by
statute. The Scot's Code says verypointedly that they have for some time agreed

(27:25):
to comply with the statute. Ithink this is sort of like a no
waiver provision because Chief Justice Roberts andJustice 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, andthe wording of the Scotis Code suggests to
me that there's no change in thatview. There's sort of reservation of rights
here. And finally, Canon five, a justice should refrain from political activity.

(27:51):
The Lower Court Code contains a definitionof political organization. This Coda's Code
doesn't. I don't really know whythat's the case, because the definition,
if you look at the Lower CourtCode, is pretty straightforward and uncontroversial.
Finally, and I don't want togo too long, because I've gone longer
than I expected. I would justsay normatively, I think this code is
an excellent first step. It's thefirst code in the courts two hundred and
thirty four year history, so theyshould get credit for issuing it, especially

(28:15):
since the legislative efforts to force themto do a code we're not going anywhere
because of Republican opposition. And second, I think it's impressive they got unanimity
here because unlike deciding a merits casewhere people can dissent, there were not
going to be any dissents from theethics Code. That would really be terrible
optics. So you somehow had toget all mine of them, very independent
freethinking people to sign onto every wordof this fifteen page code. So I

(28:37):
think they should get some props forthat. And finally, I would just
say that the lack of the enforcementmechanism 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 tangiblethat we can measure their conduct against.
And if worse came to worse andthe violations were egregious enough, now I

(29:00):
would say a concrete violation of thecode could constitute a violation of good behavior
under the Constitution and could be thebasis for impeachment. So again I think,
and again there are very significant separationof powers problems with say, Congress
opposing a code on the Justices,and so I think having this code is
a big step forward, but itis a first step, and we now

(29:22):
need to see how the Justices conductthemselves and whether their behavior changes in the
wake of the enactment of this code. Thanks, thank you both. I
guess I wanted to see first,Professor Hellman, if you had any follow
up based on David's comments. Ijust wanted to give you that opportunity before
we jump in. But I havea couple of questions also. Well,

(29:45):
well thanks. I'm going to sayI agree with just about everything David said.
I already put it very well.Particularly is a point about why the
knowingly in the provision about comments onpublic comments that cases. I admit that
didn't occur to me, But theJustices do emphasize the code does emphasize elsewhere

(30:07):
the very high number of cert petitionsand the fact that they this will probably
startle people, that the overwhelming majorityof those cert petitions are denied without any
justice actually reading any of the certpapers. They rely on the thirt Pool
memo, so that that that probablydoes account for that. The knowingly the

(30:32):
other knowingly that that David mentioned inthe in the provision on what was that
David? The other it was aboutprestige of office letting the of office.
You know, if you look atthe cases that have actually come up on
that under the Judicial Misconduct Statute,there are generally cases where knowingly wouldn't have

(30:57):
added anything anyway. So so Iagree with David that maybe was inserted out
of an excess of caution, butI wouldn't do that. One final point
speculated about why they did not includethe provision about judges are exposed to public

(31:17):
criticism and so forth, And that'sas plausible as any. But certainly there's
a distinction between criticism and scrutiny onthe one hand, and harassment on the
other. Maybe the justices did feelthat the distinction is obvious to them,
but maybe for some other people itwouldn't be. Still, I think they

(31:41):
could have put something like that,because they do say in the introduction to
the commentary that we haven't put somestuff in from the commentary to lower court
judges because not all of it isapplicable, so you are left wondering when
something is left out, is itbecause it isn't applicable or is it for

(32:02):
some other reason. But with thosea few caveats, I think David did
a fine job of expounding what isin the code what isn't And I agree
that it's a very helpful first step. So I do think that's kind of

(32:22):
a good jumping off point, andI don't want to spend too much time
before jumping to audience questions. Butyou had both said a couple of points.
First step, what is the nextstep for the Supreme Court? Is
there some other action affirmative thing thatwe are looking for that you are looking
for from the Court itself? Whatdo I mean by that? So?

(32:45):
I think it's the little things.And for folks who complain that the Court
doesn't seem to care, they dobecause in the wake of these ethics controversies,
we've seen little tells, we've seenlittle alterations in the conduct. So
for example, Justice Thomas got anextension on filing his latest financial disclosure,
and when he came back, heactually amended a whole bunch of his prior

(33:07):
disclosures, and he also included adetailed statement about some of the issues that
were raised in media coverage. Soactually, kind of maybe going back on
something I said earlier, I thinkhe did actually address a lot of the
current controversies. Justice Roberts Chief JusticeRoberts had a more detailed disclosure of the
income of his wife, Jane SullivanRoberts, who's a very successful legal recruiter.

(33:29):
There was a complaint that that incomehad not been properly disclosed as commission
based income, and he clarified thateven something little like Justice Kagan for years
she's disclosed rental income. This timearound in her disclosure, she volunteered that
it's rental income from a DC parkingspot. So there are these little things.
One other example, Justice Thomas gotsome flak for not recusing in some

(33:49):
January six cases in light of hiswife, Ginny's involvement in trying to whatever
you would say, overturn the resultsof the twenty twenty election. And then
lately there was a case in hisformer law clerk, John Eastman, who
was involved in such efforts. Herecused from the Eastman case even though he
hadn't recused from the other cases.So it's things like that, the Justice
is just running a little bit ofa tighter ship Justice and Missus Thomas maybe

(34:14):
skipping the trip to Harlan Crow's Adirondack'sestate. As I said in my newsletter
this weekend, mister Crow, youcan happily invite me, my husband and
our two kids. We would loveto 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. I think that'sprobably right, And I actually misspoke if

(34:35):
it appeared if I seemed to suggestthat the justices collectively are going to do
anything more. I don't think we'regoing to see anything more in terms of
revised code. We're not going tosee an enforcement mechanism. We can maybe
talk about that a little bit later. This is it. I mean,

(34:58):
they did the one page statement afew months ago that did not quiet the
concerns or the attacks. They've nowdone this. This is a huge step.
And with the exception of the sortof implementation kind of things by individual
justices that David has mentioned, Ido not expect to see any more collective

(35:22):
or institutional moves by the Justices.I agree with that comment from Professor Hellman.
I would just highlight those that atthe very end there is a passing
passing reference to the Chief Justice orthe Court directing court employees and the Office
of Legal Counsel to look at bestpractices surrounding ethics. So they kind of
left some wiggle room there. Idon't know that they're actually going to do

(35:44):
anything, but it's kind of likethis catch all slash escape valve because if
somebody says, well, there's noenforcement mechanism and say, well, you
know, we're looking into it,so it's kind of like the we're looking
into it thing. It's kind oflike how you know. So I think
they kind of preserve their wiggle roomthere. Oh yes, And in fact,
in that same last paragraph, I'mglad you reminded me of that,
they also talk about perhaps better conflictsoftware. I mean that I was actually

(36:08):
surprised because the implication of what theywrite there is that they are not now
using conflict software that the lower courtsare I believe, all using, and
if they are not, they certainlyshould be. I mean, it's not
infallible, we know that. Butso you're right, there are some small
things that could come up in thefuture. So one more point that I

(36:36):
just kind of wanted to grapple withbefore 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 whatwould an enforcement mechanism look like, who
would impose an enforcement mechanism, whowould be the mechanism? I think there
are also some interesting logistical questions.I spent some time as a disciplinary council

(36:58):
for a state judicial conduct mission,and one of the least satisfying things for
members of the public with that commissionwas an inherent lack of transparency because we
can't We could not make every complaintpublic under the rules. You couldn't,
and you wouldn't want that, becausecomplaints can be frivolous and targeting. I

(37:20):
guess I'm wondering, you know,David, you use the phrase empowering watchdogs,
but empowering them to what to whatend? I feel like there's some
real concern with empowering watchdogs too.Filed, debilitating public records requests, and
blood the court with complaints in anattempt to gain more transparency into what to

(37:45):
date has been very private information,So I guess I'm just curious about your
thoughts on that. Really it's moreit's really more of the same in terms
of just reporting, which I thinkyou could argue has been a powerful engine
in the sense that it was newsor that led to I think you could
argue the adoption of this code,the first one in the Court's two hundred

(38:05):
almost fifty year history. But becausethere is no enforcement mechanism, unlike with
the lower courts, where you canfile some kind of where pro sa litigants
file these random, crazy, unhitchedethics complaints against judges who say sent them
to prison, there is no oneof that for the Supreme Court, and
they don't comply with things like FOYAor what have you. So I think

(38:29):
it's kind of the best of bothworlds in the sense that you have this
concrete thing. Media organizations, organizationslike fix the Court, they can measure
your contact against them, but nobodyis creating a giant new bureaucracy to handle
complaints from random people whose cert petitionsgot denied, which sounds to me like

(38:51):
and I think this is probably agood thing, something that counsels against rushing
to create an enforcement mechanism that wouldprovide exactly that I'm going to take the
start looking at questions in our que. The first two question slash comments have
to do with the duty to decide, and Bill Hoades makes a great point,
which is that the duty to decideappears in state court or state judicial

(39:16):
conduct codes, and it's a generalduty for all judges that you your obligation
is to decide except when you can't. So I just for the audience,
I think that is a good youknow, and it kind of answers a
little bit Robert Levey's question, isthere a duty to sit? Yeah,
judges have a duty to do theirjob effect you know, that's effectively what

(39:37):
that is, except when you can't. And the discussion here is really more
about moving that line a little bitbecause of the unusual nature of the Supreme
Court. I don't know if eitherof you have any if you've seen those
questions, or if you have anycomments on that before I move on to
the others. Well, the onlything I'll mention is that there's some language

(39:58):
actually in the in the House ofthe Authoritative House Report on what is now
section four fifty five that says thatthere used to be a duty to sit
on under the old statute, andthere isn't. Now now I have to
say, I have difficulty reading theold statute as saying there was, and

(40:23):
I have difficulty reading this statute assaying there isn't. So the point there
is a number of people have attackedthe code on that specific ground, that
the saying that the Court invented thisduty to sit. It's not in the

(40:44):
it's not in four fifty five.I think the question is more complex than
that. But as the comments you'vequoted indicate, I think the Court has
come to the right place on that. I think it is consistent with the
statute. And again, as thelower court keep saying, if you are
not disqualified, you are supposed tosay that that's your job after all,

(41:06):
and you can't sit it out,either because you don't like the case or
because you think you're going to becriticized for sitting on it, criticized unjustifiably.
So our next question is do eitherof you see the Supreme Court Code
as having any language that would addressor target in any way the leak of

(41:28):
the draft Doobs opinion. The onlyprovision that I noticed was that duty to
Report one, which says that youare supposed to report misconduct by court employees.
I actually do not believe the codehas anything specific about law clerk duties
of confidentiality, which are I thinkreflected in separate documents somewhere in the federal

(41:50):
government. Professor Hellman, I didnot see anything that jumped out at me
as bearing upon the law clerk leakit is. It's an interesting point,
though. I think they might haveput something in there, but I suppose
they're just baffled the way the restof us are. So I'm looking at

(42:13):
it now. So Canon three itdoes require justices to maintain order and decorum
in judicial proceedings, and I thinkyou could argue that having a draft opinion
leaked as sort of a violation oforder indocorum. And it says that justice
should take appropriate action upon receipt ofreliable information indicating the likelihood of misconduct by

(42:34):
a court employee. Sort of thesesimilar breaches of order intocorum. So that's
what I would guess, But thereis nothing explicit about There's nothing where you
can read that and kind of saythat's a Dobbs provision, and the provisions
on reporting misconduct are in the LowerCourt Code, and indeed there were six
significantly strengthened in the wake of thesexual misconduct allegation that prompted the most recent

(43:01):
revision both of the Code of Conductand of the Judicial Misconduct Statute. But
that's our judicial misconduct rules. Sothere's some very very strong language in those.
But that's the same generic problem buta very different factual context. So

(43:24):
we have we have two questions aboutkind of related to the you know,
controversies whatever you want to call themleading to this, especially with regard to
hospitality and gifts, asking asking ifyou want to address that in particular,
are there rules here that would haveprohibited any of the alleged activity or reported

(43:50):
activity? And I guess what whatkind of restrictions do we now see under
the code? Is there something distinctabout what we see in the code from
what came before. I'll just notehere again that the financial disclosures and gift
restrictions appear in the federal Statute,and so the code is a sort of
ethical component, not the restrictive component. But with having said that, if

(44:14):
either of you have any thoughts onthose, I don't think the code addresses
the personal relationships other than the noextra judicial activities that would cause people to
bring the judiciary to disrepute or tocause frequent disqualification. As you say,

(44:39):
the disclosure requirements are dealt with separatelyin the statute, and I think that
the Court would be understandably reluctant inconstraining the social activities of its members,
just as the Low Code does notdo that. So the I agree with

(45:06):
that, they don't. I agreewith Professor Hullman, and they're not out
there to be substantively policing friendships.But I just want to find the exact
language. The Scotus Code does saya justice should comply with the restrictions on
acceptance of gifts and the prohibition onsolicitation of gifts set forth in the Judicial
Conference Regulations on gifts now in effect. So you can look up those regulations.

(45:27):
I was recently looking at them.I don't They're not particularly onerous and
they would not really necessarily have blockedany of the things that people have problems
with. So basically, the regulationsthat govern lower court judges, which now
the Supreme Court justices in the ScotisCode have said, you know, we
should comply with they allow. Theydon't allow you to solicit gifts from people

(45:49):
expecting official action. That seems prettyobvious. They don't allow you to accept
gifts from people with business before thecourt. But let's say you have a
Harlan Crow situation. You have somebodywho has no cases before the court,
there are long standing friend. They'regiving you something. You have no reason
to believe that it is to influenceyour behavior or for any other improper purpose.
You can accept that gift. AsI read the gift regulations, it's

(46:12):
just that now you are subject todisclosure and the Lower court limit for folks
who are wondering, there is adollar limit. It is generally four hundred
fifteen dollars. So some of thislarge s from Harlan Grow is worth more
than four hundred and fifteen dollars,And so maybe now you do have to
disclose that. But if you lookat the regulations, there are exceptions for

(46:35):
personal hospitality and that. So I'mnot even necessarily sure about that. But
say somebody lent you a large amountof money to buy a recreational vehicle,
and then perhaps forgave that debt andturned that loan into a gift. I
think that that would have to bereported. It's way over the four hundred
and fifteen dollar threshold. It doesn'tmean you can't accept it, especially if

(46:59):
it's pre existing friend with no businessbefore the court, but you do have
to disclose it. And I actuallydon't have a problem with it. If
people listen to my FEDSOC panel orthe 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 Atlanticabout this too. We think that the
disclosure requirements should be more robust,but I don't necessarily think that we need

(47:22):
to enact many more substantive regulations onthe justice's friendships. Say I'm in complete
agreement with that and the other.The correlative point that I think is lost
sight of and that distinguishes the Justicesfrom many other actors in Washington, particularly

(47:44):
members of Members of Congress, isthat every official action the justices take is
public. I mean it's public whenthey deny curgerary in the case, it's
public if a justice issue is aone justice order extending the time to file
a petition for curgiary. That isevery order that affects a case in any

(48:08):
way is on the public docket ofthe court. So if you have disclosure
requirements, those together with the publicreporting of the decisions, are a pretty
strong barrier against any kind of misbehavior. I mean, if you have a

(48:28):
huge gift from somebody who has businessbefore the court, that's going to be
disclosed, and of course that won'thappen because the justice knows that he or
she should not be accepting such giftsand won't do it. So I think
in that sense the system is alot stronger than people give it credit for.

(48:50):
You have the combination of disclosure ofgifts and open public reporting of everything
that every justice does that might possiblybe a quid pro quo in others,
we have the quids and the quos, and they're both public. One fun
fact, I just wanted to mentionon this subject jet travel. So before

(49:12):
this cot IS Code, months beforeregulations were revised to clarify that even under
the personal hospitality exception to reporting,you do have to report private jet travel,
just as Thomas acknowledged that in hisrecent 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 courtjudge told me, if you like really

(49:32):
dive into the REGs. So obviouslyit's not a gift if you pay for
it. Right, So if theprivate jet is all you know, cost
all this money, but you payfor your fare on the private jet,
that's fine. But here's one wayyou can actually get around. Maybe there's
maybe some federal judges listening, it'smaybe useful. There is a way to
get around the private jet reporting requirement. If you pay the cost of first

(49:55):
class commercial travel between the relevant destination, you do not have to report the
private jet travel. That is apparently, you know, double check me on
this, But a very smart federaljudge and a very ethical federal judge told
me this case. Now, look, this is the case. Now,
look, a first class ticket iskind of expensive, and you know they're

(50:15):
making less than mid level associates,so maybe they don't want to do that.
But if you want to escape thereporting requirement, you know, cough
up the couple grand and pay forthe equipped, pay your host, your
private jet friend for you know,the cost of a first class commercial fare.
Well, you were suggesting that maybesome federal judges who were listening.
Maybe for federal judges who are membersof the Code of Conduct Committee are listening

(50:38):
to this, then may be thinkingabout revising the Code of Conduct and closing
that loop. O. So itmay not be around through all that law
WEP story of ruin a good thing. So we have a an anonymous contributor
who pointed out that reading the appearanceat fun as guest of honor provision read

(51:02):
literally, could mean that a justicecould not be the speaker at city American
Bar Association or a state Bar Associationdinner if the event is you know,
likely to result in positive revenue overexpenses as opposed to. So I guess
I wonder if you think maybe abetter textual reading, or maybe that's the

(51:22):
best textual reading, or is ita better textual reading that something has to
be billed as a fundraiser that theannounced and stated purpose as opposed to well,
look, you know, we invitedsponsorships 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 provisionis. It does seem to be the

(51:45):
kind of thing that if we areexpecting to limit the access of members of
the profession to hear from you know, federal learned judges and in particular Supreme
Court justice. So that would bea net negative in terms of benefits to
the profession. So my response is, I'm guessing it's intended as a totality

(52:06):
of the circumstances test, because ifyou look at the wording, and now
we have a code, we canactually dive into these words. If you
look at the wording, it says, quote in general. In general,
an event is a fundraising event quotesif proceeds from the event exceed its costs,
or if donations are solicited in connectionwith the event. Close quote in
general. So if you have anevent and you're trying to incorporate the costs

(52:28):
of the tickets, the cost ofthe event into the tickets, but you
air and you end up with acouple hundred bucks surplus, that I do
not think is a fundraising event becauseyou made a bad calculation and your revenues
from tickets exceeded your costs. AndI get what this is aimed at,
because I've been to a bunch ofthese in the past couple of weeks.
We have a lot of them inthe New York triceara these fundraising events where

(52:49):
a charitable organization gets like fifty percentof its budget from some annual gala where
you buy a ten thousand dollars tableand they honor very fancy people with rich
friends. And then the people reachout 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 onethousand dollars ticket? Like that is a
fundraising event, And then, youknow, it's interesting what you can do

(53:09):
when you're invited to these by yourfriends is you know, I always email
the person who's running the fundraising eventand say, what portion of this is
tax deductible? Because of that onethousand dollars ticket, what's a donation to
the organization? These are usually fiveoh one c threes is tax deductible.
And so that's a fundraising event wherethere's a big surplus in the and you

(53:30):
can claim a tax right off.You know, I think again, if
you accidentally got your calculations wrong,I don't think that's a fundraising event.
We are winding down our time andhave more questions than I can get to.
I'm I'm gonna ask for a quickhit on one. Is they just
as considered a court employee? Ibelieve, No, I don't think so.

(53:54):
No, I agree. And thenthe last two questionsmitted. I'm going
to give you, David in particulara chance to respond because the question asked.
Many of David Lapps's comments make itappear that the primary impetus driving adoption
of this code of conduct was targetingJustice Thomas and his activities. Is that

(54:14):
true? We have another question,is there a double standard our Justices Thomas
and Alito being singled out when otherjustices have accepted the generosity of wealthy friends,
or have promoted books, etc.Yeah, I'll be honest, I
do think that there is a doublestandard. Check out the Twitter feed or
x feed of Mark Paoletta. Heis a prominent conservative lawyer and a friend

(54:35):
of the Thomases. Mark actually highlightsa bunch of cases where you know,
perhaps there has been some targeting,and he also notes cases where liberal justices
did similar things and didn't get inany kind of trouble and there was no
uproar. So again, I supportedthe ethics adoption of this COTUS code.
And if you listen to that FedsockNLC panel. I was the only panelist
who advocated this, and the otherpanelists were very strong in the view that

(54:59):
this was done to target conservative justices. I think there's some truth to that
in terms of the media coverage targetingconservative justices. But on the other hand,
I think there it is a goodthing that the Court has adopted this
code. One last question I'll takeregarding membership and organizations that engage in invidious

(55:22):
discrimination. Are we assuming this requiresa judge to resign from a single sex
sorority or fraternity. I believe singlesex schools are affirmatively permitted under federal law.
David, you had highlighted the singlesex I think it was a dinner
organization that through a dinner. Whatare your thoughts on that. That's a
tough one because notice the word invidioushas to be doing some work there.

(55:46):
Again, I love now that wehave this language, so you do have
to wonder about that. I thinkthe paradigmatic case is these ritzy clubs in
major cities that are these beautiful oldbuildings and that have a history of not
having female members, black members members. Who are you know? That is
probably the core the gravimen of that'sprobably the big deal here. I'm not

(56:13):
as sure about fraternities and sororities.I mean, you know, maybe that
would actually have to be well again, but there's no enforcement mechanism. I
was like, oh, it'll belitigated. Well not really, but you
know so, I guess my answerto the question if this word deposition,
I don't know. I just addthere's one judicial misconduct complaint that deals with
that provision in the in the LowerCourt Code. I think it's actually,

(56:36):
in some ways an unfortunate decision.It doesn't include it wasn't about sororities or
opportunities. But David is absolutely rightthat the word invidious is in there for
a reason, and it is designedto leave some some room for discriminatory quote
unquote organizations that are not invidious,whatever that might mean. But there are

(57:01):
some that are invidious. That's thenatural inference from the language, isn't it.
Dave Well, I see we're headingto the top of the hour.
I guess I'll turn it back overto you, Jack. Thank you,
Judge Perkins. Well on behalf ofthe Federal Society. I want to thank
mister Latt and Professor Hellman for sharingtheir time with us today and of course

(57:24):
to you Judge Perkins from moderating thediscussion. As always, a recording of
this will be posted on our website, YouTube channel, and podcast feed in
the next few days, and ifyou're interested, a link to the recent
National Lawyer's Convention panel that David wasa part of and mentioned throughout this program
is also available on our site,which I highly recommend checking out. As

(57:44):
always, we do welcome listener feedbackby email at info at feddashsock dot org.
And with that, thank you allvery much for joining us today and
I hope you all have a wonderfulThanksgiving. We are adjourned thank you for
listening to this episode of tell Forms, a podcast of the Federal Society's Practice
Groups. For more information about theFederal Society, the Practice Groups, and

(58:06):
to become a Federal Society member,please visit our website at fedsoc dot org.