Justin Lindsay is a US National Correspondent for JURIST, and a rising 3L at the University of Pittsburgh School of Law.
On Monday, July 10th, two top US Senate Democrats announced they would be pushing forward a bill meant to close perceived loopholes in the federal judiciary. The Supreme Court Ethics, Recusal, and Transparency Act sponsored by Senator Sheldon Whitehouse [D-RI] will be brought to a vote before the Senate Judiciary Committee, chaired by fellow Democrat Dick Durbin [D-Ill], on July 20th.
The proposed bill is the latest in a series brought by Sen. Whitehouse and Senator Chris Murphy [D-CT] meant to bring the United States Supreme Court’s ethics rules in line with the rest of the federal government. It is also likely the last opportunity for court reform before the 2024 election cycle swallows all political energy.
The announcement follows a string of controversial decisions by the court, with seemingly more on the way. It also occurs in concert with a series of disturbing reports of possible undue influence on members of the court, and seeming impropriety by both the conservative majority and liberal minority members.
The Republican Senate leader, Senator Mitch McConnell [R-KY] does not see this as an ethics issue. He instead traces Democrats’ frustration to a “fundamental misunderstanding” of the Supreme Court, and its “politically unpredictable center.” He further takes umbrage with “Democrats on the Senate Judiciary Committee [] trying to tell a coequal branch of government how to manage its internal operations, ostensibly to clean up its ‘ethics.'”
The Senator deftly avoids the real issue: the kinds of perks enjoyed by members of the Court (such as a gratis sailing journey valued at over $500,000 for Justice Thomas) would simply not be possible for any other member of the federal Judiciary, or even any other member of the federal government. In the case of a federal judge, the appearance of impropriety (such as taking a luxury fishing trip valued at over $100,000 funded by a party with business before the court) would invoke Canon 2 of the Code of Conduct: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities.
No such code exists for the Supreme Court, however. And so trust in the rule of law continues to erode: a recent NBC News poll found that just 31% of American registered voters have positive views of the Supreme Court, while 40% have negative views. In October 2018, by contrast, 50% had positive views, while 21% had negative views.
The Justices themselves continue to enjoy the kind of placidity only possible in the uninquisitive mind. Chief Justice Roberts declined to appear before the Senate Judiciary, citing “separation of powers concerns and the importance of preserving judicial independence.” Given the subject of the hearing was the importance of preserving judicial independence, taking the response at face value is difficult. And since the remainder of the declination addresses only the rarity of appearing before the Senate, “judicial independence” does not appear to have been at the forefront of the Chief Justice’s mind.
The letter concludes with a Statement on Ethics, signed by all current members of the Court, describing the system currently in place and their pledge to adhere to it, it having seemingly eluded them that the issue is the system they are pledging themselves to follow. Refusing to let their decisions be questioned appears to be the Court’s position; when ProPublica approached Justice Alito with questions about the aforementioned fishing trip, he declined to comment and instead penned an opinion piece in the Wall Street Journal.
In the absence of any action by the Court, members of Congress appear ready to take over. While the exact verbiage of the bill has not been made public, it is from the same sponsor and carries the same name as a bill brought to the Senate in 2022. S.4188 was brought to the Senate but seemingly rotted on the vine. While any final version will certainly differ, it may be beneficial to consider what the Senator from Rhode Island has proposed before that is so anathema to the Court.
For one, the bill would impose upon Justices two of the duties all other federal judges have: the duty to know their financial interests and a duty to notify parties if those interests would be affected by a case brought before them. Other portions of the Bill are more novel; it would require Amici (“friends of the court” who write briefs supporting a party’s position) to declare any gifts or income they provided to a justice.
The most contentious provisions are perhaps the most toothless. The much-discussed code of conduct? The Bill requires the Supreme Court to write it. Gift, travel, and income disclosure? The standards would be approved by the Chief Justice. The creation of a panel process to review motions to disqualify judges? Does not apply to the Supreme Court; they are to be the arbiters of their own disqualification.
The bill allows the Supreme Court to write and grade their own test, only asking that they publish the results . . . still, that was too much for the Justices.
Every other branch of the federal government established rules against the kinds of abuses witnessed daily in the Supreme Court. While there is certainly room for debate on the propriety of one branch imposing its own ethics on another, there is no debate that, “Answering legitimate questions from the people’s representatives is one of the checks and balances that helps preserve the separation of powers.”
The Justices’ refusal to even engage in a discussion on the issue can only lead to a further decline in trust for the institution. Thomas Jefferson warned of the “despotism of an oligarchy.” But despotism is not just the abuse of power; it is also immunity from the consequences of that abuse.
