The Boston Bar Association (BBA) has endorsed a resolution urging the United States Supreme Court to finally adopt a binding code of judicial ethics governing its nine justices, and for the first time subject itself to standards like those that apply to all other federal judges and the highest courts of all 50 states.
In doing so, the BBA joins a growing chorus led by the American Bar Association. “We have been moved by the troubling trend of declining public faith in the institution of the Supreme Court,” said BBA President Chinh Pham. “The rule of law, which is foundational to democracy itself, depends heavily on trust in the impartiality and transparency of the judiciary. And while this step alone may not fully restore lost confidence in the nation’s highest court, it would at least signal that the justices share our concern that their conduct must be held to the highest standard.”
“Supreme Court justices should be accountable to publicly available standards,” said Renée Landers, a former BBA President and former vice chair of the Commission on Judicial Conduct, who helped draft Massachusetts’ current Code of Judicial Conduct. “Given the awesome power they exercise and the lifetime tenure they enjoy, this lack of accountability is an on-going weakness in our system.” The resolution does not specify the exact form that the code should take, deferring to the Supreme Court itself on those details. But the BBA noted that mechanisms in place to govern the conduct of the Supreme Judicial Court (SJC), Massachusetts’ highest court, have worked well. All Massachusetts judges must adhere to statutes and a code imposing disclosure obligations and requirements for managing conflicts. The code was the product of an open and inclusive process for developing the rules. These requirements are similar to the Code of Judicial Conduct and laws enacted by Congress already governing all federal judges except justices of the Supreme Court.
“We certainly hope that the current Supreme Court recognizes the erosion of trust that their lack of a code of conduct has created,” said Carol Starkey, another former BBA President, who is currently a BBA delegate to the ABA. “Until then, we hope other bar associations will add their voices on behalf of the entire legal community.”
The BBA has frequently spoken on the need for a strong and independent judicial branch at the state and federal level, and released a 2019 report, Judicial Independence: Promoting Justice and Maintaining Democracy, that offered an array of recommendations for all groups that have a stake in the legitimacy of the bench, while also explaining how state and federal judges—other than the Supreme Court—are already bound by ethical responsibilities that provide clarity and accountability.
What we in the courts do, and how we do it, is seen not only by the litigants before us, but by the entire community. The stakes are high. Our performance will help to determine whether constitutional principles are nourished and whether human rights are advanced. —Former SJC Chief Justice Edward F. Hennessey, from remarks delivered at a 1989 conference of all Massachusetts judges.