Our Highest Court Needs the Highest Ethical Standards: Three Proposals to Raise the Bar
Our highest court should meet the highest ethical standards. Both the public and litigants need to be able to assess any potential conflicts for themselves. Disclosure is needed to help strengthen trust in an open, honest, and accountable government.
News that Justice Clarence Thomas accepted hundreds of thousands of dollars in luxury travel from an ultra-wealthy supporter of conservative efforts to change the law and shape the judiciary have put a spotlight on the urgent need for Supreme Court ethics reform.
Supreme Court justices are subject to certain disclosure laws – including the Ethics in Government Act of 1978 – but there is no transparent and binding code of conduct governing its ethics like there is for all lower court judges. (Justice Thomas reportedly thought that the luxury travel was exempt from disclosure under a “personal hospitality” exemption to the Ethics in Government Act.)
At a time when confidence in the Court is already at alarming lows, the Supreme Court could choose to adopt a transparent and enforceable code of conduct. But so far it has failed to do so. Chief Justice Roberts – who rejected Senator Durbin’s invitation to testify at an upcoming Judiciary Committee hearing – referenced a “statement on ethics principles and practices” to which he says the Court subscribes. The “statement” is not a substitute for a transparent and enforceable code of conduct.
Senate Judiciary Committee Chairman Dick Durbin (D-IL) will soon gavel-in a hearing on Supreme Court ethics. It will provide an opportunity for senators and the public to learn more about the issue and hear from experts.
The good news is that there are currently three strong Supreme Court ethics proposals pending in Congress. Below is a short summary of each proposal, based on the bill text and information provided by the lawmakers who offered them.
The Supreme Court Ethics, Recusal, and Transparency (SCERT) Act (S. 359/H.R. 926)
This is the most comprehensive bill of the 118th Congress, introduced in the Senate by Senators Sheldon Whitehouse (D-RI) and Richard Blumenthal (D-CT) and in the House by Representatives Hank Johnson (D-GA), Jerry Nadler (D-NY), Mike Quigley (D-IL), and David Cicilline (D-RI).
The SCERT Act would require:
- The Supreme Court to create and publish a code of conduct and other rules related to ethics, financial disclosure, and judicial misconduct. It would also be enforceable – the public could submit ethics complaints and a randomly-selected panel of lower court federal judges would then investigate and make recommendations for action.
- The Supreme Court to adopt rules that are at least as rigorous as Congressional disclosure rules for gifts, travel, and outside income.
- Disclosure of funding for friend-of-the-court (called “amicus curiae”) briefs – these are submitted to the Court by people or groups who are not parties to a case but have a point of view to share – which the Supreme Court uses to supplement its understanding of a legal issue when it is deciding a case.
- Parties and those submitting friend-of-the-court briefs to disclose money they spent to urge a justice’s confirmation to the bench.
Finally, the SCERT Act strengthens recusal requirements that apply to judges – including requiring recusal when a party lobbied or spent money to campaign for a judge’s confirmation.
The Supreme Court Ethics Act (S. 325/H.R. 927)
This bill – which is narrower than the SCERT Act – was introduced in the Senate by Senator Chris Murphy (D-CT) and in the House by Representative Hank Johnson (D-GA).
It would require:
- The Judicial Conference of the United States to issue a code of conduct that would apply to the Supreme Court.
- The Supreme Court to appoint an Ethics Investigation Counsel to establish a process for public complaints coupled with an annual report on allegations and investigations.
- Justices who recuse themselves to disclose their rationale for recusal publicly. If a party to a case before the Court were to make a motion – in other words, formally request – a justice to recuse, and the justice refuses, the justice would be required to disclose the reason they refused to disclose.
The Supreme Court Code of Conduct Act (S. 1290)
This bill, similar in scope to the Supreme Court Ethics Act, was introduced in the Senate by Senators Angus King (I-ME) and Lisa Murkowski (R-AK).
It would require the Supreme Court to adopt and make public a code of conduct. Like the SCERT Act and the Supreme Court Ethics Act, it would also be enforceable by requiring the Court to designate someone to process complaints alleging violations of the code (or federal law, or other conduct that is “prejudicial to the administration of justice”). The person processing these complaints would then publish an annual report, available to the public, describing complaints and actions taken to remedy the alleged conduct. It also gives the Court the authority to initiate its own investigations as events warrant.
All of these proposals are strong and merit close examination and support, and we will pay close attention to the hearings as we push for the strongest reform we can get. It will be up to the committee of jurisdiction – in this case, the Judiciary Committees of the Senate and House – to evaluate what they learn at the hearings, examine these bills, refine them, and recommend legislation for the rest of the Congress to consider.