Justice Ketanji Brown Jackson recently dissented from most of her fellow judges and came out in support of an enforceable Supreme Court Code of Conduct to replace the unenforceable one issued by the Supreme Court late last year.
in CBS News interview“There's nothing wrong with an enforceable rule,” the new judge said, which is “fairly standard” for U.S. courts.
She posed the question, “Is the Supreme Court any different?” and concluded, “I have not seen a compelling reason why the Supreme Court is any different from other courts.”
In November, after years of controversy and facing declining public trust, the U.S. Supreme Court finally Adopted The Supreme Court ended decades of operating as the only court in the nation without a written code of ethics. But the code of conduct for Supreme Court justices lacks enforcement provisions and is advisory at best. Powerless at worst.
Jackson said in a television interview that she will be releasing her new memoir,Nice personBut as always, the devil is in the details, and the court's inadequacies Toothless cord This can be seen even in something as mundane as bookselling.
Jackson is not the only judge Wrote a bookJustices Sonia Sotomayor and Clarence Thomas Published bestseller Journal Over the past few years, Justice Neil Gorsuch recently Published a book On what he thinks about the excesses of the administrative state. Justices Amy Coney Barrett and Brett Kavanaugh are currently I have the manuscript under Contract with a major publisher.
While judges no doubt have good faith reasons for writing their decisions, they also have powerful financial incentives. Federal law states:limitIt applies to outside income but not royalties.
Their progress is profitable (approx. $340,000 Kavanaugh's eye-opener$1.9 million Sotomayor and $3 million (In Jackson's case).
And that's just the beginning: If Judge is lucky enough to be popular, subsequent sales could bring in even more money, which is why releases, like Jackson's, are often accompanied by interview tours.
But book promotion raises ethical questions Completely different From writing a book.
In July 2023, the Associated Press Reported Ms. Sotomayor's “tax-funded court staff” had encouraged her to sell books at her speaking events, which took place at the Oregon State Library, Clemson University, the University of Wisconsin and various other venues, Ms. Sotomayor's aides urged organizers to purchase more books than they had originally ordered because “people would get upset if the books they needed were sold out and they couldn't get in line.”
That would have been completely unethical for a lower court judge. Their “pretty standard”code of conductThe law, in place since 1973, prohibits judges from using court personnel or resources for commercial or profit-making activities, including bookselling.
But at the time, the Supreme Court had no legal code, and therefore no rules, barring Sotomayor from profiting from her staff's efforts.
Just a few months after the AP exposé, the Supreme Court released its code of conduct, which included an entirely new provision in Canon 4A not found in other court codes: the so-called “Sotomayor Rule,” which states that “a Justice may attend and speak at any event where his or her books are available for purchase.”
But that's not all: A few paragraphs down the page, Canon 4G significantly expands the rules to allow judges to use their staff and courtrooms “to materially support the activities permitted in these canons,” which uniquely includes making books “available for purchase.”
This provision: Code of the Lower CourtsThe law explicitly prohibits any substantial use of courtrooms or personnel for “extrajudicial activities,” including those that are normally permitted.
Thus, the judges have invented a right of personal use of staff (including investment control under the provisions of Canon 4D) that is naturally denied to all other judges in the United States.
The book's promotion is a minor issue compared with the larger ethical issues that have plagued the court in recent years, including the inappropriate conduct of Justices Clarence Thomas and Samuel Alito. Finance DisclosureThe Supreme Court Act's recusal provisions are too vague to make sense.
On the other hand, the Sotomayor Rule shows exactly why Justice Jackson had the right idea: Self-drafted, self-defined, unenforceable codes will almost inevitably contain exceptions and escape routes for their drafters, especially when their economic interests are at stake in any way.
If judges exploit the ethical loopholes they have created, there is no one to stop them, even in name.
Around 2005, IClaimedEven the Supreme Court's unenforceable ethics codeat least“Let the public know what to expect from their judges.” So there you have it. It's no big deal.
Steven Lubet is Williams Memorial Professor Emeritus at Northwestern University Pritzker School of Law.
