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.

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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.”

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To read the paper, open HERE.

Relitigating Dobbs in a Conservative Court: The Potential Road from Justice Thomas and Natural Law

By James C. Ashley

James C. Ashley is a summa cum laude graduate of Albany Law School, class of 2023. He graduated with a bachelor’s degree in Spanish Linguistics from SUNY Albany, also summa cum laude.

At Albany Law School, James was an Executive Editor for Notes and Comments on the Albany Law Review, a Sponsler Fellow in Civil Procedure, and a Teaching Assistant in Lawyering. He was the winner of the 2022 Domenick L. Gabrielli Appellate Advocacy Moot Court Competition. James interned with the New York State Division of Human Rights, as well as with Cahill Gordon & Reindel LLP, where he will begin his career after the bar exam.

As early as 1991, reporters predicted that if selected for the Supreme Court, a Justice Clarence Thomas would one day vote to overturn Roe v. Wade.

At his confirmation hearing, he was questioned about his prior embrace of the doctrine of natural law—the belief in the existence of a higher law that can be discovered by human reason—to draw out his views on abortion. Thirty years later, the Supreme Court held, in Dobbs v. Jackson Women’s Health Organization, that the Federal Constitution does not provide protection for a woman’s right to have an abortion, with Justice Thomas voting to overturn Roe as predicted. He concurred separately, but with no explicit references to the natural law doctrine.

This paper examines Justice Thomas’s opinions on abortion for either implicit or explicit references to natural law. Then, it weighs the feasibility of several novel arguments that could be used to relitigate Dobbs before a conservative Court.

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To read the paper, open HERE.

Justice Thomas’s Critique of Qualified Immunity

An Originalist's Perspective on the Judicial Doctrine

By Patricia Whelan

Patricia Whelan is a current 2L at Albany Law School. Prior to attending Albany Law, she graduated from the Pennsylvania State University in 2020, where she majored in Criminology and minored in Sociology.

At Albany Law, Patricia is a member of the Albany Law Review, the Chief Justice of the Phi Alpha Delta Law Fraternity, and the ABA At-Large Senator for the Student Bar Association. She has interned for the Third Judicial District Town and Village Courts Unit and served as the Law Student Liaison for the ABA Section of State and Local Government Law from 2020-2021.

Patricia is now a Law Clerk at Pierro, Connor & Strauss, LLC.

Justice Clarence Thomas has prominently defended his take on originalism, which demands adhering to the text of the United States Constitution in a manner that is consistent with how it would have been understood or was intended to be understood at the time it was ratified in 1789. The judicial philosophy of originalism asserts that all text in the Constitution must be interpreted and applied based on historical accounts and the original understanding of the text. According to Justice Thomas, originalism is the best and most legitimate way to interpret the Constitution and other legal texts.

Over the course of his tenure on the Supreme Court, Justice Thomas has shaped his own unique approach to interpreting the Constitution and other texts, all the while keeping in line with the fundamentals of originalism. Justice Thomas supports the conviction that originalism is the jurisprudence most compatible with the American Government and the original intentions of the Founding Fathers. Moreover, he “rejects the notion… that the Constitution is a ‘living document’ and that Supreme Court justices should creatively adjust the meaning of its terms…”

This paper examines the relationship between Justice Thomas’ judicial philosophy of originalism and the doctrine of qualified immunity. This paper introduces the cultural and historical doctrine of qualified immunity through the originalist perspective and posits that the Court should reconsider the legitimacy of this judicial doctrine. Further, this paper argues that from Justice Thomas’ perspective, qualified immunity has a weak foundation in legal texts and at common law. From the premise that it is not well supported under the methodology of originalism, this paper discusses Justice Thomas’ concerns with the doctrine of qualified immunity and thus, the implications it has for his jurisprudence.

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To read the paper, open HERE. 

Silence of the Justices (Or Lack Thereof) [slide presentation]

By Richard Caister


Richard Caister, a third-year law student at Albany Law School, is originally from Clinton, NY. He is a graduate of Union College, having majored in Philosophy and Classics. He completed a legal internship with the Herkimer County Supreme Court, and is currently interning with the Committee on Open Government.

His slide presentation on the frequency--or lack thereof--with which the Justices ask questions at oral arguments was prepared for the Judicial Process Seminar, Fall 2011. His related paper on Justice Thomas, specifically Thomas's silence and dissents, was prepared for the same course and is accessible below.

(click on slides to enlarge)

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To view the complete slide presentation, open HERE.

(It is then best to download the presentation and view it from there.)
To read the related paper on Justice Thomas, open HERE.

Justice Clarence Thomas’ Interpretation and Application of the Constitution

Textualism, Originalism, and Natural Law as a Means to Reducing Judicial Discretion and Achieving Judicial Restraint
by Margaret Doody


Margaret Doody is a 2011 graduate of Albany Law School. She was a semi-finalist in the 2010-2011 Karen C. McGovern Senior Prize Trials.
In this paper, which she prepared for Professor Stephen Gottlieb's Supreme Court Watch Seminar, Ms. Doody examines Justice Thomas' use of a combination of interpretative methodologies in reaching ideologically conservative positions throughout his career.


Appointed to the Supreme Court in 1991 by President George H.W. Bush, Justice Clarence Thomas has developed a sound reputation as one of the Court’s most conservative members. Quite shortly after joining the Court in October of that year, Justice Thomas aligned himself with Justice Scalia and Chief Justice Rehnquist, forming the conservative trio that lasted until Rehnquist’s death in 2005.


It is easy to view this alliance as indicative of shared conservative views and jurisprudence. However, such an assumption is not entirely true. Although it is accurate to say that all three justices share conservative values, such a statement represents an oversimplified view of the individual justices’ jurisprudential styles. Upon closer examination, Justice Thomas stands out as possessing unique, while still conservative, views that are expressed and carried out through his own brand of jurisprudence.


In order to understand Justice Thomas’ jurisprudence, it is necessary to first understand the three separate elements that Thomas combines to form the unique methodological approach he applies when interpreting the Constitution and deciding cases. These elements are each distinct and independent approaches to Constitutional interpretation. They are textualism, originalism, and the application of the notion of higher law.
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Read the entire paper HERE