The U.S. Supreme Court recently demonstrated the critical importance of ethics standards at the nation’s highest court when it summarily affirmed a lower court’s judgment after five justices recused themselves from hearing the case, suggesting that there was at least an appearance of, if not actual, conflicts of interest. Without six justices to participate, the remainder of the Court could not proceed with hearing the case under a law that prevents cases from being decided by just a few justices. The recusals marked a rare yet welcome illustration of the need for transparency and accountability as the Court adjudicates its consequential docket.

Justices Samuel Alito, Sonia Sotomayor, Neil Gorsuch, Amy Coney Barrett and Kentanji Brown Jackson each recused themselves in Baker v. Coates, but with no official explanation of their reasoning, understanding of their decisions remains speculative. There is no formal oversight body to review the specific facts of a justice’s conflict, nor is there a requirement that justices disclose their reasoning for recusal, meaning there is no transparency or documentation establishing a standard for recusal in future cases when similar conflicts arise. Because one party in the case owns a publishing company that has published or will be publishing books written by at least four of the recusing justices, their recusals presumably reflect the conflict of interest that exists when a judge has a financial interest in one of the parties to the case. By recusing, the justices have ensured that the case outcome could not be called into question as being motivated by their own financial gain from their respective book deals with one of the parties to the lawsuit. This decision is a step in the right direction, but obviously a more formal, predictable and transparent process is needed to prevent justices from bringing conflicts to the bench. Justices continue to handle the transparency of their recusal decisions differently, sometimes citing a reason and sometimes simply recusing without explanation.

“This decision is a step in the right direction, but obviously a more formal, predictable and transparent process is needed to prevent justices from bringing conflicts to the bench.”

While the Court is subject to the judicial recusal statute, that requirement has no enforcement mechanism aside from the justices’ self-evaluation. Following years of public calls for the Court to address the inherent risks of an ad hoc approach by individual justices to address perceived and actual conflicts of interest, the Court adopted a code of conduct in 2023. But that code fell far short. It is written as recommendations for the justices to follow, not requirements that dictate their actions. It provides no consequence for a decision inconsistent with the recommendations, nor does it require transparency of the justices’ reasoning or oversight by a third party. In other words, it merely formalized the existing practice of voluntary decisionmaking by the justices themselves, with no enforcement mechanism to bind the members of the Court on any recommended actions.  

The Court’s integrity has been questioned for years, as justices’ decisions to participate in particular cases inevitably lead to skepticism that their personal interests may be influencing their decisionmaking. But the justices’ recusals in Baker are an encouraging sign that the Court is moving in the right direction to address its ethical duties. In light of continued attacks on the Court and efforts to undermine the judicial process, establishing enforceable ethical standards remains crucial and Congress has just reintroduced legislation that would do so. These approaches will restore trust amidst a divided political system and address concerns that the judiciary is susceptible to undue influence that undermines its duty as a structural check in the constitutional separation of powers.