How Structural Supreme Court Reform Can Also Create Ethics Reform

All but one federal court is bound to the Code of Conduct for United States judges. Can you guess which one is exempt?

The Supreme Court, the nation’s highest, is the only court in the country that does not follow an ethics code. Ethics laws are necessary for fair and independent court operation, or at least the appearance of fairness and independence. Without them, financial and political interests can easily permeate the judiciary and influence a judge’s ruling. While a Supreme Court ethics code is necessary, changing the structure of the Supreme Court is another possible pathway that could create a more ethical institution.

At least in law, federal judges (excluding Supreme Court justices) are not allowed to let outside interest groups manipulate their judgment. The Code of Conduct for U.S. Judges provides that “a judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.” The Due Process Clauses of the U.S. Constitution provide that a judge must recuse him or herself from ruling in cases in which he or she has a financial interest in the case’s outcome and when there is a strong possibility that the judge’s ruling will be biased. These laws help increase the appearance of fairness and independence on lower courts by reducing the influence of outsiders that could sway the outcome of cases.

The federal recusal statute similarly provides that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” However, this is difficult to enforce. Furthermore, the statute does not provide any procedures for Supreme Court recusals. Therefore, justices recuse themselves at their own discretion, rather than being prompted. Supreme Court justices may appear to be bound to ethics codes, but in practice, there is little to no enforcement.

Supreme Court justices have voluntarily recused themselves from cases in which they have conflicts of interest. However, there are plenty of instances in which the Code of Conduct for U.S. Judges would have required the justices to recuse themselves when they did not. For example, Justice Elena Kagan was Solicitor General when the legal defenses for the Affordable Care Act were developed. Deservedly, she was criticized in 2012 for not recusing herself from National Federation of Independent Business v. Sebelius, the landmark case that upheld the Affordable Care Act. Likewise, Justice Clarence Thomas was criticized for not recusing himself from the same case because his wife was a public critic of Obama’s Affordable Care Act.

What would have happened if both Justice Kagan and Justice Thomas had recused themselves from the landmark decision? That would have left only seven justices to decide the fate of healthcare in America. Unlike lower courts who can substitute judges, the Supreme Court would have been left without its full bench. If four justices recuse themselves, the court will lack a quorum and therefore be unable to rule on the case. Recusals may also lead to an even number of justices and thus the possibility of a tied vote.

This is where Supreme Court reform comes in. Some advocates of Supreme Court reform have proposed a rotating panel of justices to replace the current system. With a rotating panel of justices, every Court of Appeals judge would also become a Supreme Court justice. A panel would be randomly selected from the pool of appellate judges and current justices. This panel would hear and decide cases for a designated period of time. Then, a new panel would be selected. A separate panel would be responsible for reviewing the deciding panel’s decision. While this proposal is often supported by progressives who want to reduce the influence of conservative court-packing, it will also encourage justices to recuse themselves when they do have a conflict of interest. If a justice chose to recuse him or herself, a new justice could be selected to replace him or her.

Generally, justices prefer not to recuse themselves, despite that it can increase the legitimacy of the court. Since the 1970s, the “duty to sit” doctrine has helped influence whether or not justices choose to recuse themselves from a case. Former Chief Justice William Rehnquist suggested that justices have a duty to remain on the bench because Supreme Court justices cannot be interchanged as judges on the lower courts can. He believed that the obligation to “to sit” outweighed justifications for recusal. A rotating panel of judges would help address this dilemma by alleviating the pressure on justices “to sit.” If justices are more likely to recuse themselves when they have a conflict of interest in a case, then the Supreme Court will also operate more ethically.

While a rotating panel of Supreme Court justices may seem radical to some, it is not inconsistent with American history. Under the Judiciary Act of 1789, justices often took positions on lower courts. Circuit judges replaced the justices’ positions on lower courts under the Judiciary Act of 1869, but the practice continued until 1911.

The Jurist explains that Congress’ passage of the Judiciary Acts indicates its power to control the structure of the federal courts. Therefore, a rotating panel of justices could be possible with an act from Congress. It is necessary that the public is made aware of this pathway so that citizens can use their voice to let their legislators know that they support structural and ethical Supreme Court reform.