It takes a lot for a historical figure to be memorialized for nearly 500 years as an eponymous adjective. Still, Niccolò Machiavelli achieved that feat as the progenitor of devious political scheming. Nobody today wants to be called Machiavellian, but the truth is that Machiavelli provided some excellent advice to his patrons in 16th-century Florence, aspects of which remain valuable today. Even the Supreme Court, it turns out, could have benefited from Machiavelli’s counsel regarding their adoption of written ethics rules.
As Machiavelli explained in The Prince in 1532 when a disease begins, “it is easy to cure but difficult to diagnose; after a time . . . it becomes easy to diagnose but difficult to cure. So it is in politics.” And so it was with the Supreme Court’s belatedly-issued Code of Conduct.
The court spent decades refusing to adopt a code of conduct at a time when it could have announced clear ethics standards unencumbered by the revelations that disastrously surfaced this year. When the court finally acted, it was already mired in scandals involving the sketchy finances of several justices. By then, as Machiavelli predicted, it was too late for a code to “cure” the court’s ailing reputation.
The story begins in 1972 when the American Bar Association promulgated a Model Code of Judicial Conduct. The Judicial Conference of the United States formally adopted it for the lower federal courts in 1973, as did every state and the District of Columbia. Only the Supreme Court declined to adopt such a code of conduct. Lucky for them, it went all but unnoticed at the time.
But their luck, a favorite topic of Machiavelli’s, ran out. Judicial ethics questions about the Court drew national attention in 2004 when the late Justice Antonin Scalia went duck hunting as the guest of then-Vice President Dick Cheney and subsequently declined to recuse himself from a case in which the veep was the defendant. Following an eruption of criticism, Scalia issued a lengthy memorandum in his defense, which did not quell the controversy.
In what turned out to be a regrettably missed opportunity, Chief Justice John Roberts devoted his 2011 Year-End Report of the Federal Judiciary to judicial ethics, but only to declare that the court had no reason to adopt a code of conduct as “a definitive source of ethical guidance.” It was unnecessary, he explained, because his colleagues were “jurists of exceptional integrity and experience whose character and fitness” was beyond question. Never mind that the entire system of checks and balances is based on the supposition that we are all flawed and guardrails are necessary.
Few were persuaded by Roberts’s reassurance. Beginning in 2013, Congressional Democrats annually introduced versions of a “Supreme Court Ethics Act,” requiring the Court to draft and adopt a code of conduct. None of the bills reached the floor of either chamber.
Between 1973 and 2012, the Supreme Court could have issued a code of conduct free from significant controversy. Even until 2022, the court probably could have drafted provisions covering, as Roberts once put it, “ethical considerations unique to the Supreme Court,” without raising any concerns about the fine details.
Instead of recognizing the need for a code and acting on what Machiavelli would have called an early “diagnosis,” the court waited for a crisis, which was sure to come.
Enter ProPublica. Beginning on April 6, 2023, the nonprofit news organization published a series of searing investigative reports into the undisclosed financial dealings of Justice Clarence Thomas, which included lavish gifts, luxury vacations, and a favorable real estate transaction with Republican megadonor Harlan Crow and other posh treatment from wealthy friends and supporters.
In June, another ProPublica report revealed similar, although less extensive, largess toward Justice Samuel Alito, with the additional detail that the justice had not recused himself in a case that benefitted one of his benefactors. Other news organizations followed suit, issuing investigative reports—some genuinely troubling; some not so much—into the finances of Roberts and Justices Neil Gorsuch, Amy Coney Barrett, Sonia Sotomayor, and Thomas again.
As the court’s approval plunged to record lows—impelled by both the ethics revelations and the unpopular 2022 decision reversing Roe v. Wade—the justices stonewalled adopting a code of conduct. Thomas issued a series of self-justifications, both personally and through amanuenses. Alito published a petulant op-ed in The Wall Street Journal, denying everything. He later declared in an interview that Congress had “no authority” to regulate the Supreme Court, in a seeming repudiation of the federal financial disclosure and recusal statutes.
Roberts politely refused an invitation to testify at a Senate Judiciary Committee hearing about possible judicial ethics legislation, including the requirement of a code. Instead, all nine justices submitted a Statement of Ethics Principles and Practices, decrying “common misperceptions” of their ethical standards while denying the need for a written code.
In July, the Judiciary Committee nonetheless voted along party lines to advance The Supreme Court Ethics, Recusal, and Transparence Act of 2023, which would tighten financial disclosure obligations and require the court to draft and adopt its own code of conduct.
The justices finally got the message. On November 13, without advance notice, the court issued its Code of Conduct for Justices of the Supreme Court of the United States, accompanied by an introductory statement and six pages of commentary.
As Machiavelli would have warned the justices, a code that would probably have been welcomed as unremarkable almost any time in earlier decades was instead greeted with intense scrutiny and skepticism, including by me. The justices’ grudging explanation that they were acting to “dispel [public] misunderstanding” didn’t help their case.
Provisions that would have been considered prophylactic if adopted in advance were recognized as post hoc rationalizations for the justices’ questionable behavior. One subsection, for example, authorizes justices to use their chambers and staff for profit-making activities, contradicting the prohibition that applies to all other state and federal judges, in a too-obvious reaction to the criticism of Sotomayor’s use of her assistants to peddle books.
The standards for recusal are even worse, with two subsections that appear in no other courts’ codes. The first states, “A Justice is presumed impartial and has an obligation to sit unless disqualified,” and the second states, “The rule of necessity may override the rule of disqualification.” A lengthy discussion in the accompanying commentary equates “necessity” with “importance,” all but swallowing the usual rule, found in both the federal statute and elsewhere in the Supreme Court’s code, that justices are disqualified if their “impartiality might reasonably be questioned.”
Because recusal decisions, as the code’s commentary affirms, are made by “Individual Justices, rather than the Court,” each justice is left to decide alone whether the perceived importance of a case—likely with the deciding vote in hand—imposes a “duty to sit” superseding even a manifest conflict of interest. The justices have thus codified Alito’s testy insistence, announcing his non-recusal in a hotly contested case, that “Recusal is a personal decision for each justice,” unconstrained by statutes or rules.
Most jarring is a provision peevishly stating that the “Justices have agreed to comply with the [federal] statute governing financial disclosure.” Here, the court is channeling Alito’s solipsistic view that compliance with ethics laws is discretionary for the justices, who, presumably, may withdraw their agreement if disclosure becomes too onerous (or too embarrassing).
After decades of pushing for a Supreme Court code of conduct, it may seem unfair for me to subject the actual code to such close critique. But that is what happens when a remedy—in this case, written ethics rules—is withheld until recognition of the malady—in this case, financial entanglements—becomes inescapable.
There was never a chance that the justices would consult Machiavelli, no matter how relevant his advice, which is too bad. Decades of inattention could only result in what might best be called the Supreme Court’s code of inclinations.
