On February 8, 2023, a resolution was issued by the American Bar Association requesting the Supreme Court of the United States to adopt a judicial ethics code similar to the code of conduct all other federal judges must follow.

According to a report from Bloomberg Law, the action was prompted by the concern raised by the public perception towards courts. The Supreme Court has dealt with a wave of ethics concerns in recent months and public opinion plummeted after it overturned the constitutional right to abortion. The report revealed that a Marquette Law School poll last month found that public approval of the court had jumped up to 47% after hitting 38% in June, but that’s still well below the 66% approval rating the court. The resolution focused on the fact that the absence of a clearly articulated, binding code of ethics for the justices threatens the legitimacy of the court.

According to the report made by the American Bar Association, “An independent judiciary is the cornerstone of the rule of law and our constitutional republic. It protects the liberty of the people. Yet public support for an independent judiciary can only be sustained if there is public confidence in the legitimacy of the judiciary. Public confidence requires that the public believe judges act ethically according to standards firmly grounded in judicial independence, integrity, and impartiality.” In relation to this, every judge in every jurisdiction in the United States is subject to a binding code of ethics that embodies basic judicial ethical precepts with enforcement mechanisms.

The report explained that the court has voluntarily resolved to comply with certain Judicial Conference regulations pertaining to the receipt of gifts by judicial officers. Yet a set of rules including the full sweep of basic ethical principles applicable to other judges in this country has not been adopted by the court.

The American Bar Association emphasized that the absence of this binding code potentially imperils the legitimacy of all American courts and the American judicial system. The report stated that given the court’s central role enshrined in the federal republic – If the legitimacy of the Court is diminished – the legitimacy of all our courts and the entire judicial system is imperiled. Moreover, the report argued that while the court’s role in the federal system is unique, and the issues posed in framing a binding code of conduct for judges of a court of last resort can be challenging, they are not insurmountable.

The American Bar Association cleared that the resolution takes no position on the nature or extent of any enforcement mechanism or sanctions that might attach to violations of such a code of ethics. They leave these questions to the court’s own judgment and discretion. Moreover, it stated that the resolution is not grounded upon, nor does it ask the ABA House of Delegates to make any findings, or comment upon, any particular conduct by any one or more current or former members of the court.

A copy of the original resolution can be found here.