Isn’t It About Time The Supreme Court Adopted A Code of Ethical Conduct?*

9 min readOct 24, 2020


Photo by Adam Szuscik on Unsplash

No recently confirmed United States Supreme Court Justice could credibly believe it ethical to sit in judgment on a dispute in which the president, a candidate in an imminent election, announced as justification for her nomination to the highly coveted, lifetime appointment, his urgent need for her vote on a politically divided court to decide the election’s outcome. Right?

The circumstance would present a conflict of interest. Right?

Disqualification would avoid impropriety or the appearance of impropriety. Right?

Disqualification would avoid undermining public confidence in the court, its integrity and independence as a fair arbiter of disputes based solely on the facts and law, uninfluenced by partisan politics, friendships or repayment of a debt. Right?

Disqualification would eliminate the suspicion of a quid pro quo and dispel what otherwise would appear to be the quo to the president’s quid for her appointment. Right?

Under the Code of Conduct for United States Judges that applies to all federal judges, any newly-appointed Justice would, of course, be required to disqualify. Right?

The Constitution and Supreme Court precedent require her disqualification. Right?

Justice Amy Coney Barrett will, of course, disqualify herself from sitting in judgment on the case if the outcome of the election is in dispute and makes its way to the Supreme Court. Right?

R . . i . . g . . h . . t.

The Pedestrian, Oil on Canvas, 32" x 48", Richard J Van Wagoner, Courtesy of Van Wagonner Family Trust**

Soon-to-be Justice Amy Coney Barrett clerked for Justice Antonin Scalia. “His judicial philosophy is mine, too,” she claims.

I’m curious whether his ethics are hers, too, whether she will follow Scalia’s example of ignoring conflicts of interest, engaging in impropriety or creating the appearance thereof, and marginalizing public confidence in the integrity and independence of the court as a fair arbiter of disputes based solely on the facts and law, uninfluenced by partisan politics, friendships or repayment of a debt.

You may recall, “Justice Antonin Scalia had rejected a motion that he recuse [disqualify] himself from a case that provided a textbook example of the circumstances a Justice should avoid.”

“Scalia’s close friend Dick Cheney, who was then the Vice-President, was accused of lying about the composition of a White House group that was setting national energy policy. While the case was pending, Scalia and Cheney went duck hunting together, and Cheney gave Scalia and two of his family members a ride on a government Gulfstream jet from Washington, D.C., to Louisiana, where they did their hunting.

“Scalia eventually joined the majority of the Court in a procedural ruling that sent the case back to a lower court. But he was also the only Justice to join a separate opinion by Justice Clarence Thomas saying that the activities of the Vice-President should not be scrutinized in litigation run amok.”

The Code of Conduct for United States Judges is a carefully crafted set of ethical canons with its origins going back to 1924. The ethical requirements apply to all federal judges. The Code is designed to assure that judges make decisions on the merits of each case, based on the law and facts, assuring litigants their cases will be decided in complete fairness, competence and independence. The Code is also meant to assure the public of the judiciary’s integrity and independence. The following are among the Code’s ethical Canons:

Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary

“An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective. . . .

Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities

“(A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

“(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. . . .


Canon 2A. An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. . . .

Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently “The duties of judicial office take precedence over all other activities. . . . The judge should adhere to the following standards: . . .

“(C) Disqualification.

“(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which: (a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding . . . .”

In his annual report on the judiciary in 2011, Chief Justice Roberts explained why the Code is not binding on the Supreme Court:

“The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body [including the Supreme Court].”

It’s not as though Supreme Court Justices are above the law. They ARE the law.

While Chief Justice Roberts tried to assure those questioning the propriety of the Supreme Court’s lack of a code of ethical conduct, which that court could fashion and implement, each Justice is his or her own judge, deciding for him or herself the ethical propriety of sitting in judgment on cases in which s/he has a conflict of interest, engages in impropriety or creates the appearances thereof, as did soon-to-be Justice Amy Coney Barrett’s mentor, Justice Scalia.

“If Scalia had been a member of the United States Court of Appeals for the District of Columbia Circuit, as he was before becoming a Justice, it would not have been up to him to decide whether he should be recused. Under the code of conduct, the chief judge for his circuit would have considered any motion calling for Scalia’s recusal, conducted an inquiry, and resolved the matter.”

Do circumstances exist in which the Constitution mandates a Justice’s disqualification? Has the Supreme Court held that a judge’s disqualification rises to a constitutional level?

In a recent Washington Post Op-Ed, J. Michael Luttig, who served on the United States Court of Appeals for the Fourth Circuit from 1991–2006, highlighted a Supreme Court decision from 2009. In that case, the high court held that the Due Process Clause required a state appellate court judge’s disqualification. Former Judge Luttig argues that the 2009 case could require disqualification of soon-to-be confirmed Justice Amy Coney Barrett if a dispute over the election’s outcome makes its way to the high court.

Please bear with me.

In Caperton v. A.T. Massey Coal Co. (Massey), a state court case out of West Virginia, Massey was hit with a $50,000,000.00 judgment for various misconduct, including fraudulent misrepresentation.

West Virginia elects state judges including those who sit on its appellate courts. In the 2004 election, an attorney, Brent Benjamin, was challenging an incumbent justice on the State Supreme Court of Appeals. Massey’s chairman and principal officer Don Blankenship knew the State Supreme Court of Appeals would be hearing Massey’s appeal. Blankenship contributed $3,000,000.00 in support of a Benjamin’s candidacy, and causes in which Benjamin was interested. Benjamin won by a slim margin.

Before Massey filed its appeal, however, Caperton filed a motion to disqualify newly-elected Justice Benjamin under the Due Process Clause of the US Constitution and the West Virginia Code of Judicial Conduct. The basis for the motion was the $3,000,000.00 conflict caused by Blankenship, Massey’s chairman and principal officer. Benjamin denied the motion, finding no bias for or against any party in the case.

Holding in favor of Massey the State Supreme Court of Appeals reversed and vacated the $50,000,000.00 verdict. During the rehearing process, Benjamin twice more refused to recuse himself.

In a 5–4 decision, United States Supreme Court held that the Due Process Clause required Benjamin’s disqualification. Writing for the slim majority, Chief Justice Roberts explained:

“It is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement of due process.’ . . . As the Court has recognized, however, ‘most matters relating to judicial disqualification [do] not rise to a constitutional level.’ . . .

“Th[is] . . . Court concluded that the Due Process Clause incorporated the common-law rule that a judge must recuse himself when he has ‘a direct, personal, substantial, pecuniary interest’ in a case. This rule reflects the maxim that ‘[n]o man is allowed to be a judge in his own cause’ because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. . . .

“As new problems have emerged that were not discussed at common law, however, the Court has identified additional instances which, as an objective matter, require recusal. These are circumstances ‘in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’ . . .

We conclude that there is a serious risk of actual bias — based on objective and reasonable perceptions — when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.

“Applying this principle, we conclude that Blankenship’s campaign efforts had a significant and disproportionate influence in placing Justice Benjamin on the case. . . .

“Our decision today addresses an extraordinary situation where the Constitution requires recusal. Massey and its amici predict that various adverse consequences will follow from recognizing a constitutional violation here — ranging from a flood of recusal motions to unnecessary interference with judicial elections. We disagree. The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case.

“It is true that extreme cases often test the bounds of established legal principles, and sometimes no administrable standard may be available to address the perceived wrong. But it is also true that extreme cases are more likely to cross constitutional limits, requiring this Court’s intervention and formulation of objective standards. This is particularly true when due process is violated.

Justice Scalia dissented, of course.

Imagining a more suitable, extreme case in which the Constitution requires disqualification — a president who has personal stake in a particular case having a significant and disproportionate influence in placing the justice on the case — is difficult.

While I agree with former Judge Luttig’s analysis of what should happen, I find it fanciful to think the Supreme Court, at least with its current make up and disposition, would ever find a circumstance that rose to the level of a constitutional mandate to disqualify its own, even in a case in which the Constitution and the entire credibility of the Court scream for disqualification.

*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to and Rob’s next novel, a beautifully written suspense drama that takes place in Utah, Wyoming and Norway, will be published by Signature Books this fall. This novel, The Contortionists, the story of a missing child in a predominantly Mormon community, is a psychological page-turner.

**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in a number of traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in and are hers.




Exercising my right not to remain silent. Criminal defense and First Amendment attorney.