Commentary: The Supreme Court, law clerks and legal ethics

Lexington, VA Wednesday, July 20, 2011

This commentary originally appeared in the National Law Journal's Supreme Court Insider on July 20, 2011.

Recently, The New York Times published an editorial lamenting the partisan political behavior by some Supreme Court justices, writing that "[t]he court cannot maintain its legitimacy as guardian of the rule of law when justices behave like politicians." To combat the partisanship of the Court, the Times called upon the justices to officially adopt the ethical code of conduct that governs all other federal judges. The Times editorial is but the latest in a stream of recent editorials and stories about the Supreme Court and judicial ethics, as legal commentators have debated such topics as judicial recusal, the reporting standards for gifts and whether the justices and their spouses should appear at political events and fundraisers.

The Supreme Court justices have not adopted a binding canon of ethics for themselves, but they might find guidance in the ethical code that binds the "junior justices," namely, the law clerks who assist the justices in processing the work of the Court. Under the guidance of former Chief Justice William Rehnquist, the Court created the Code of Conduct for Law Clerks of the Supreme Court of the United States in March 1989. It is divided into six canons. Observing that "[a]n independent and honorable judiciary is indispensable to justice in our society," the Code of Conduct dictates that "[a] law clerk should observe high standards of conduct so that the integrity and independence of the judiciary may be preserved." Canon 1. Accordingly, a law clerk must zealously avoid the appearance of impropriety, resist those familial or social pressures that could affect his judgment (Canon 2), "be dignified, courteous, and fair to all persons with whom the law clerk deals in the law clerk's official capacity" and "never disclose to any person any confidential information received in the course of the law clerk's duties." Canon 3. To the justice and the Court, the law clerk owes "complete confidentiality, accuracy, and loyalty" and must always be cognizant of the fact that his actions "reflect on the Justice, on the Court, and, ultimately, on the judiciary as whole." Canon 2.

Canons 4 and 5 recognize that even the most competent law clerk can be comprised by extrajudicial commitments and pressures (both real and perceived).Canon 4 states that a law clerk may engage in such "avocational activities" as writing and lecturing on nonlegal topics, playing sports, attending charity events, serving on nonprofit boards, entering into financial dealings and engaging in "recreational activities" if said activities "do not detract from the dignity of the office or interfere with the performance of official duties" and if the clerk does not "solicit court personnel to contribute to or participate in" said charitable or civic organizations. Although a law clerk is free to pursue post-clerkship employment, he must alert the justice to a potential conflict of interest between his future employer and pending cases before the Court. (The justice will then decide if the law clerk must be curtailed from working on that case).

Limits and reporting requirements are also placed on gifts and compensation that a law clerk can receive. The Court may require the law clerk to report any gifts from any parties other than a relative, and clerks are forbidden to accept gifts or loans "from any person whose interests have come or are likely to come before the Court or from any other person under circumstances that might reasonably be regarded as influencing the performance of the law clerks' official duties." Canon 4. Canon 5 essentially limits the clerk to making a "reasonable amount" of compensation from extrajudicial activities, compensation that the Court may again require the clerk to report. Canon 5 adds, however, that the clerk cannot draw another salary. Finally, Canon 6 states that a law clerk "should refrain from political activity." This includes becoming a candidate, holding office, endorsing a candidate, contributing to a candidate or political organization, or engaging in any other activities prohibited by the Hatch Act.

The Code of Conduct states that law clerks must comply with its provisions "throughout" their clerkship, but former clerks typically view the twin duties of loyalty and confidentiality as lifelong in nature. Law clerks are required to sign the code, and, if they violate its ethical canons, they can be terminated. Although a clerk cannot be terminated for violations of the Code of Conduct committed after his clerkship, certainly the prospect of falling out of his justice's good graces is sufficient disincentive to continue to abide by the Code.

The above is a brief overview of the ethical rules imposed by the Supreme Court on its law clerks under the March 1989 version of the code. (The Supreme Court refuses to release the current Code of Conduct, and there may be revisions what is referred to here is a copy of the code found in the personal papers of Justice Thurgood Marshall.) As the calls continue for the justices to bind themselves with an ethical code of conduct, they might look to the code that the "junior justices" are required to follow. While certain provisions of the Code of Conduct are not applicable, its provisions on maintaining "the integrity and independence of the judiciary," avoiding the appearance of impropriety and remaining scrupulously above all political activities might prove instructive to the justices.

Todd C. Peppers is the Henry H. and Trudye H. Fowler Professor of Public Affairs at Roanoke College and a visiting professor of law at Washington and Lee University School of Law. He is the author of Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk (Stanford University Press 2006) and the co-editor of the forthcoming book Behind the Bench: Portraits of United States Supreme Court Law Clerks and Their Justices (University of Virginia Press 2011).

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