The Supreme Court’s Code of Conduct

An Analysis and the Likelihood of Success

By Kayla A. Curtin

Kayla Curtin is a 2024 graduate of Albany Law School. She was raised on her family’s potato farm in rural Steuben County, New York.

Prior to attending law school, Kayla earned dual bachelor’s degrees from Le Moyne College in history and political science. During law school, Kayla served as a law clerk at the Barbaruolo Law Firm and served as a bankruptcy fellow at Legal Aid of Western New York (LAWNY).

Kayla is beginning her legal career as an Assistant Public Defender for the Monroe County Public Defender’s Office in Rochester, New York.

Scandal is not a new concept to the United States Supreme Court. In the last several years, members of the current Roberts Court have faced scrutiny from the American public regarding their activities outside the courtroom. On November 13, 2023, the United States Supreme Court issued its first-ever Judicial Code of Conduct, based on the Judicial Code of Conduct set forth by the American Bar Association and the United States Code of Judicial Conduct.

The Supreme Court’s Code of Conduct is a direct response and an attempt at bandaging the oozing wound of controversy that has surrounded the Roberts Court. But the Supreme Court has been hearing cases where the Justices should have recused themselves due to acts of impropriety and other causes for decades. Despite all of this, the Code lacks methods of enforcement and other important procedural details for the Justices to follow regarding disqualification and recusal.

The first part of this paper will introduce the three codes of conduct and a brief background on their effectiveness, focusing on disqualification and recusal. The second part of this paper is a comparison of the three codes of conduct. Here, the paper makes an inference as to whether the Supreme Court’s Code goes far enough in terms of disqualification and recusal. Further, the paper examines whether the Justices are capable of being the ones to decide when they are disqualified or should recuse themselves. The third part of this paper is an analysis of past cases in which judges have refused to recuse themselves.  It also infers, based on the Supreme Court’s Code, whether the result would be different if the same or similar situation were to occur again. The fourth and final part of this paper is a conclusion and a proposal that if the Supreme Court does not propose additional canons or an effective enforcement mechanism, the Code may come to be known as a flimsy Band-Aid to cover a long history of controversy.

Author's Note: While this paper is critical of the judicial system, its purpose is not to lead readers to believe all judges fail to abide by the codes of conduct mentioned in this paper. Rather, this paper focuses on some of the more infamous failures to recuse, encourages all judges to continue holding themselves accountable, and acknowledges the importance of a partisan judge.

_____________________

To read the paper, open HERE.

Supremely Conservative Replacements

By Paige Gottorff

Paige Gottorff is a recent graduate of the Class of 2024 at Albany Law School.

Prior to attending law school, Paige earned a degree in Legal Studies at Grand Valley State University, Michigan, where she was a member of the Women’s Lacrosse Team. 

At Albany Law School, Paige served as Managing Editor for Research and Writing for the Government Law Review, Vol. 17, where she worked on the Writing Competition and edited second-year students’ notes and comments. She was also a member of the Albany Law Negotiations Travel Team and the Albany Law Student Trial Advocacy Competition Travel Team.  Additionally, Paige competed in numerous in-house moot court competitions.

Following the bar examination, Paige will be working as an Associate Attorney for Vahey Law Offices, PLLC, in Rochester, NY.

The United States Supreme Court has recently been on a history-making streak.  And not for admirable reasons, but for the alarming regularity with which the Court has been stripping individuals of their rights.

The current bench is the most conservative panel the Court has seen in ninety years.  This is frightening when pondering the trend expected regarding basic human rights cases about which the Court grants certiorari and opts to conceal from public scrutiny by deciding through the shadow docket.

Since the earliest of times, death has been a valid punishment for crimes with minuscule societal impact.  As history progressed, methods of execution began at the most barbaric levels and slowly shifted to consider the ethics of executing a fellow human being.  Presently, “more than seventy percent of the world’s countries have abolished capital punishment in law or practice.”  But in 2022, the United States was in the top five of the world’s countries that performed executions--fewer only than China, Iran, Saudi Arabia, and Egypt.

As a vast majority of death penalty cases are petitioned to the Supreme Court, the nine Justices who don the black robe are the same ones who “okay” the executions.  How has the United States gone from abolishing the death penalty to reinstating it and using it the fifth most frequently in the world?  A closer look at the individuals who have made and are currently making these critical decisions may give us a sense of what is really going on at this country's “Court of Last Resort.”

_______________________________

To read the paper, open HERE.

Justice Samuel Alito’s Approach to Stare Decisis

By Claire D. Hewitt

Claire Hewitt just finished her second year at Albany Law School. But she’ll be graduating early, in December 2023.

Before attending law school, Claire earned her bachelor’s degree from SUNY Oswego, where she majored in criminal justice and was on the women’s softball team. 

At the law school, Claire has been an Associate Board Member of the Moot Court Program, Treasurer of Phi Alpha Delta, Teaching Assistant for Professor Wetmore’s Criminal Law course, and Certified Legal Intern for the Albany County DA’s Office in the Major Crimes Bureau. This summer, she is working at the New York County DA’s Office as a Summer Law Fellow. 

Claire has previously interned for the New York State Office of the Attorney General in the Criminal Enforcement and Financial Crimes Bureau. Before law school, she worked as a full-time legal assistant for a solo practitioner in Syracuse, New York, working on civil matters and appeals.

In his Senate confirmation hearing, Justice Samuel Alito testified that stare decisis is a fundamental part of the American legal system and ensured that he would respect the judgments and wisdom which are embedded in prior judicial decisions. However, actions speak louder than words. If Justice Alito truly believed that the judicial doctrine of stare decisis is a fundamental part of the American legal system, why is it that he will agree to overturn court-set precedent when it aligns with his personal views?

While stare decisis is an important doctrine that has helped regulate the judiciary for hundreds of years, its inconsistent implementation by Supreme Court justices like Justice Alito directly contradicts its purpose. Justice Alito appears to give great deference to stare decisis, as demonstrated in many of his judicial opinions, which reveal his reliance on precedent and historical practice as a method of reasoning and his disfavor of precedent-altering decisions. Yet, many of his opinions also reveal a willingness to depart from precedent as he chooses.

Despite his claim that judges are neither legislators nor rule makers, an observation of Justice Alito’s jurisprudence demonstrates that stare decisis is merely a political tool of convenience. Justice Alito is guilty of using this tool inconsistently, specifically to further his own religious views and political positions.  

This paper proceeds in three parts. Part I lays out a background explanation of the legal doctrine of stare decisis and its basic history and place in the Supreme Court. Part II focuses on Justice Alito’s stance on this doctrine by discussing many of his opinions, which cumulatively demonstrate three distinct observations of his jurisprudence. Part III discusses the resulting conflict that arises from the inconsistent implementation of stare decisis and its impact on the current Supreme Court and today’s society. Part IV ties together ideas and draws conclusions.

_____________________

To read the paper, open HERE.

Just Die Already: Samuel A. Alito on Cases Involving the Death Penalty

By Jay Kindlon

Jay Kindlon, a 2020 graduate of Albany Law School, was an associate editor of the Albany Law Review, a teaching assistant, and a research assistant. Prior to attending law school, Jay earned a Bachelor’s Degree with majors in History and Africana Studies from Binghamton University.

While in law school, Jay served as a judicial extern to the Hon. Lawrence E. Kahn of the Northern District of New York, and as an intern with the Office of the Federal Public Defender for the Northern District of New York. He also participated in a number of Moot Court competitions where he won the Domenic L. Gabrielli Appellate Advocacy Competition and was a finalist in the American Arbitration Association’s Judith S. Kaye Arbitration Competition. He interned in the summer following his 2nd year with Schulte Roth & Zabel, where he will begin work as a junior associate.

“Yet it is precisely in the most contentious cases that Alito has shown an unbroken pattern of excusing errors in capital proceedings and eroding norms of basic fairness.” During Justice Samuel A. Alito’s confirmation process, much attention was paid to his decision making on abortion cases; however, Professor Goodwin Liu, in an LA Times article, focused on his death penalty decisions. In his time on the Third Circuit, Alito voted against, and often wrote separate opinions attacking, those sentenced to death. Liu emphasized that Alito’s capital punishment jurisprudence, which makes up a substantial part of the Supreme Court docket, deserved closer attention and scrutiny as he went through the confirmation process. Now that Alito has been on the Court for well over a decade, his death penalty jurisprudence deserves a more comprehensive analysis. 

Up to this point, analyses of Alito’s death penalty jurisprudence have been fractured. Alito has been described as markedly harsh towards criminals, deferential to state legislatures, and, by one commentator, the most consistent conservative on the Court. Most commentators have only considered Alito’s death penalty jurisprudence on the Third Circuit, or in a few specific cases, but rarely on its own. These articles fall short in accounting for the full picture of Alito’s death penalty jurisprudence. By taking a more holistic view of Alito’s death penalty opinions, his individual arguments become less important and a clearer image emerges. 

This paper will examine Alito’s death penalty jurisprudence and the true motivations behind his decisions. In three phases, this paper will begin by exploring Alito’s voting pattern and effect on the court, then observe four notable opinions to analyze his reasoning, and finally, try to account for Alito’s voting and rhetoric. More specifically, in the first phase, this paper will consider Alito’s voting pattern in twenty high profile death penalty cases. After evaluating his voting and the dynamics of his opinion writing, this paper will analyze four of Alito’s opinions by first discussing how he argued in each of these cases before analyzing his specific reasoning. These opinions will cover Alito writing for the majority and three dissenting opinions. Finally, the paper will use the twenty cases and the lessons gleaned from them to explain Alito’s death penalty jurisprudence. _________________________________

To read the paper, open HERE.