Pictured from left to right: Ethics Center Director of Religious and Catholic Ethics David DeCosse, Judge Jeremy Fogel, School of Law Professor Brad Joondeph, and School of Law Dean Michael Kaufman. Photo by: Annie Warr/Santa Clara University School of Law.
On October 27, the Markkula Center for Applied Ethics and the Santa Clara University School of Law co hosted a panel centered around ethics and the Supreme Court of the United States. Santa Clara University School of Law Professor Brad Joondeph spoke with guest speaker and judicial ethicist Judge Jeremy Fogel to discuss the dimensions in which ethics and the judiciary are extricated. Judge Fogel offered his insight on past proceedings of the federal judiciary and what he believes to be the next best steps moving forward, especially in terms of engaging with the American general public. The event, coordinated by Ethics Center Director of Religious and Catholic Ethics, David DeCosse, attracted more than 100 students, faculty, alumni and virtual attendees.
Judge Fogel is the first Executive Director of the Berkeley Judicial Institute. He 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 was the founding Directing Attorney of the Mental Health Advocacy Project from 1978 to 1981 and has testified before the Senate Judiciary Committee.
School of Law Dean Michael Kaufman welcomed and introduced Professor Joondeph and Judge Fogel as the audience assembled, declaring the topic of conversation as, “both incredibly timeless and incredibly timely.”
Professor Joondeph moderated the conversation with Judge Fogel, including audience Q&A relating to the event’s main theme of the Supreme Court’s lack of a guiding code of conduct. Judge Fogel noted the ‘decisional’ and ‘institutional’ independence that the Supreme Court has from Congress, which has prevented the formal implementation of an ethics code. He describes the former as SCOTUS’ right to interpret the laws that Congress passes as they see fit, and that they do not concede to Congress’ jurisdiction in this regard, while describing the latter as the Supreme Court’s right to not be subject to an executive office that would oversee the judicial branch so as not to infringe on the former.
Judge Fogel later spoke on why he believes there should be an agreed set of principles formally laid out as guidance for the Supreme Court. He reminded the audience that the judges are all people with their respective backgrounds and beliefs, but that it is also exactly why an ethics code is necessary. Channeling Chief Justice John G. Roberts, Fogel stated, “There is a real value in consensus… [It’s saying] this is the standard that we are all willing to live by.” Fogel also stressed his belief that, “Ethics seems to me nonpartisan, ethics is a matter of principle.”
Just a few short weeks since the conversation with Judge Fogel, the Supreme Court has announced the implementation of a new ethics code for Supreme Court Justices. The new code is proving to be almost as controversial as the previous absence of any such guidelines due to the lack of any enforcement mechanism or accountability measures. In response to the announcement, Judge Fogel told ProPublica that he was “heartened to see that the justices unanimously have recognized the need for an explicit code of conduct.”
“Whether it will make a difference in the justices’ day-to-day actions or in public perceptions of the court remains to be seen,” Fogel said.
Mia Kanter ‘24, dance & french studies major and a marketing and communications intern at the Markkula Center for Applied Ethics, contributed to this story.