Judicial Ethics and Political Neutrality in the Supreme Court

Ethical Obligations of Judges on Political Matters

Judges in American courts are required to adhere to the Code of Conduct for United States Judges. The primary principle of judicial ethics is found in Rule 1.2 of the Model Code of Judicial Conduct, which states: "A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety" (Greenstein, 2015). With a specific focus on political matters, nothing in judicial ethics or the Constitution's guarantees of free speech prohibits judges from making political commentary. Under Canon 4 of the Code of Conduct for United States Judges, judges are permitted to speak, write, teach, and participate on any issues that concern the legal system, the law, and the administration of justice.

This notwithstanding, it is a long-standing judicial tradition within the American judicial system that judges should not participate in public debates on matters of public law and intra-court affairs. This restraint is sometimes described as "judicial lockjaw," founded on the need to avoid discussing issues that might one day arrive in the courtroom for determination (Westin, 1962). In addition, it relates to public sentiment about how judges execute their mandate while remaining above the politics of the day. Justice Ruth Bader Ginsburg's remarks on the candidacy of Donald J. Trump in 2016 were widely criticized as unethical. Still, in actual practice, the Code of Conduct is only a measure that judges — especially Supreme Court justices — adhere to voluntarily and has not been formally enforced upon them (Greenstein, 2014). This is largely because of the need to maintain the independence of the court as implied by the Constitution, where the framers provided the congressional power of impeachment as the only form of punishment for Supreme Court justices.

Should the Supreme Court Weigh In on Political Issues?

Supreme Court justices should only participate in political matters of the day from a measured, low-profile standpoint — rendering self-explanatory commentary that does not require further elaboration — rather than engaging in direct public political discourse. Politics inevitably touches the Court through the nomination and Senate confirmation process and through the Court's capacity to intervene in political disputes (Mazzone, 2018). This is illustrated by landmark decisions such as Bush v. Gore, 531 U.S. 98 (2000), and rulings on legislative apportionment and redistricting, as in Baker v. Carr, 369 U.S. 186 (1962). However, the Supreme Court must avoid the risk of stepping into popular political discourse directly, as doing so would cultivate the perception that justices are immersed in partisan politics and that their decisions reflect personal political preferences.

A public perception of the Supreme Court as a political institution would make it far more difficult for the Court's inevitably controversial decisions to be accepted by the broader public. The constitutional boundaries between the mandate of Supreme Court justices and that of members of Congress or the executive branch are not entirely clear. Nevertheless, the public believes such a boundary exists — and therein lies the differing ethical standard applied to justices versus political operatives. For this reason, Supreme Court justices should exercise deliberate caution not to cross those boundaries.