On October 27th, faculty, students, alumni, and virtual attendees alike came together for a hybrid panel centered on ethics and the United States Supreme Court. The event was co-sponsored by the Markkula Center for Applied Ethics and was open to the public.
Dean Michael Kaufman offered words of welcome to the assembled guests and introduced the speakers for the event; Santa Clara Law’s own Professor Brad Joondeph—Jerry A. Kasner Professor of Law—and Judge Jeremy Fogel, Executive Director of the Berkeley Judicial Institute and nationally-recognized expert on judicial ethics. Judge Fogel previously served as Director of the Federal Judicial Center in Washington, DC (2011-2018), as a United States District Judge for the Northern District of California (1998-2011), and as a judge of the Santa Clara County Superior (1986-1998) and Municipal (1981-1986) Courts. He has also testified before the Senate Judiciary Committee on the importance of transparent codes of conduct for the Supreme Court.
“This is a very special program involving ethics and our judiciary,” Dean Kaufman commented. “This topic is both incredibly timeless and incredibly timely.”
During the panel, Professor Joondeph moderated questions and stimulated conversation between the assembled guests and Judge Fogel. Chiefly among the discussed topics was the Supreme Court’s lack of a formal code of conduct. “All of the courts in the country are having a crisis in confidence,” Judge Fogel said. “When you have appearances that are as significant as the appearances you have here, and you don’t have a code of conduct that anyone can understand, that’s not a good situation. It leaves the impression that people can do whatever they want. This lack of clarity is very, very damaging to public confidence in the courts.”
Professor Joondeph and Judge Fogel also discussed the nuance of optics and appearance with the public. “I’ve heard the [Supreme] court described as the YOLO court; you know, You Only Live Once,” Fogel remarked. “Once you get in, you can do whatever you want. And if that’s true, that’s not what the court’s about. I don’t think that’s what it’s about, but it’s harder to make that argument when you don’t have a code of conduct.”
Judge Fogel also took questions from the assembled guests. “A question I’ve been asked a lot is that: if seven of the justices want to [implement a code of conduct], why don’t they just do it?” he noted. “I think the Chief Justice thinks it’s important that it’s something they all agree to. There’s real value in consensus, in saying ‘This is the standard we all want to live by.’ It would be so much more powerful if all nine [justices] said it.”
When asked if Supreme Court candidates should be vetted to establish their ethical fortitude, Judge Fogel asserted: “Somebody’s going to ask those questions, and they should. It seems to me ethics is not partisan; it’s a message of core principle.”