Does the Highest Court Have the Lowest Standards?
Susan Sullivan Lagon | September 7, 2023
In Federalist 78, published in the spring of 1788, Alexander Hamilton famously referred to the judiciary as “the least dangerous” branch of the federal government. A fair question 235 years later is whether it has become the least accountable branch, at least at the top level. Unlike lower-court judges and employees in the executive and legislative branches, Supreme Court justices are not bound by a formal code of ethical conduct. That may seem like a record-scratch moment—to understand it we have to understand the law and its basis, reasons for renewed concern, what reform options Congress has—and what’s likely to happen.
Wait, what?! There’s No Ethics Code?
It’s true. Virtually every federal employee is bound by written codes of ethics, with nine notable exceptions. Since the founding of the republic, Supreme Court justices have been bound by little other than their anodyne oath of office in which they promise to “administer justice without respect to persons, and do equal right to the poor and to the rich, and…faithfully and impartially discharge and perform all the duties incumbent” upon them. Meanwhile, judges on the U.S. District Courts and U.S. Courts of Appeals are bound by a code of conduct established and periodically revised by the Judicial Conference of the U.S. Specific provisions address judicial integrity, what extra-judicial activity is permitted, a prohibition on political activity, and the need to avoid even the appearance of impropriety. The catch: There’s no real enforcement mechanism beyond a judge’s conscience because Article III allows judges to serve “during good behavior” and the only way they can be removed is through impeachment or for gross misconduct.
Like the lower federal courts and the entire executive branch, the Judicial Conference was created by Congress. It was established in 1922 and includes the chief judge and a District Court judge from every federal circuit, presided over by the Chief Justice of the U.S. Judges in the 50 states have their own codes based on guidelines set by the American Bar Association (ABA). So why is the nation’s highest tribunal exempt?
Article III, The Source of Ethics Exemption, and What Current Justices Have Said
According to Chief Justice John Roberts, neither the Judicial Conference nor Congress has jurisdiction over the Supreme Court’s ethics. Article III established “one Supreme Court” while leaving the rest of the judiciary (and the executive branch) to Congress. More recently, Justice Samuel Alito took the unusual step of writing an op-ed and put the matter in stark terms. Responding to proposed legislation that would require the Supreme Court to adopt a binding code of conduct, Alito declared, “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court. Period.”
In his annual report in 2011, six years after he became Chief Justice, Roberts wrote that a code was unnecessary because justices can (and do) “consult” the code that lower-court judges must follow even though they are explicitly not bound by it. Roberts went on to note that while the justices complied with gift reporting and financial disclosure requirements in the 1978 Ethics in Government Act and the 1989 Ethics Reform Act, Congress’s authority to include the Supreme Court along with other public servants in those laws had never actually been established. That’s right: These disclosure forms are done as a courtesy by the Supreme Court and amendments filed later are common, for example, Justice Ruth Bader Ginsburg’s accepting a valuable opera costume or Justice Thomas accepting a sculpted bust of Frederick Douglass.
Renewed Concern as Investigations Unearth Trips, Gifts, and a Lack of Recusal
The glaring lack of a code of conduct for the Supreme Court was back in the spotlight thanks to Pro Publica’s revelations about previously unreported luxury travel (private jets, yachts, resort stays), real estate purchases, and boarding school tuition for a grandnephew bestowed upon Justice Clarence Thomas by Texas billionaire and Republican Party donor Harlan Crow. Thomas claimed that the travel fell under the category of “personal hospitality” and was therefore exempt from the reporting rules while the real estate deal and tuition were inadvertent omissions.
Justice Alito’s failure to report a 2008 fishing trip to Alaska at the behest of billionaire hedge fund manager Paul Singer also attracted Pro Publica’s scrutiny, especially after Alito didn’t recuse himself from a case involving a lengthy battle between Singer’s hedge fund and the nation of Argentina. (Singer prevailed in the 7:1 decision.) Justices Thomas and Alito were granted a 90-day extension from the May deadline to file their disclosure documents. A host of previously unreported trips have just come to light as a result.
Justice Thomas’s lawyer, Elliot Berke, played the partisan witchhunt card in a statement released with Thomas’s disclosure forms: “It is painfully obvious that these attacks are motivated by hatred for his judicial philosophy, not by any real belief in ethical lapses.” Partisan considerations aside, subsidized travel for the justices has attracted attention for years. The nonprofit Open Secrets found that from 2004 to 2019, justices had taken 1,306 trips paid by others—and those were just the reported ones. Some Court watchers have noticed a disturbing trend where less and less information was included in disclosure forms. Veteran Court reporter Joan Biskupic lamented that Thomas’s transgressions “reflect a larger Supreme Court culture of nondisclosure, little explanation, and no comment.”
Notably, the Judicial Conference amended its reporting requirements in March 2023 to eliminate the “personal hospitality” loophole. All judges, including those on the Supreme Court, are now required to disclose “non-business stays at resorts, the use of private jets, and instances when a third party reimburses a host for costs associated with a visit.” Apparently the justices have deigned to comply, possibly recognizing the public relations disaster the Thomas and Alito episodes caused for an institution whose public support has cratered in recent years.
Disclosures are also important determinants of whether judges should recuse themselves from cases. This is a thorny issue in that judges rely on their consciences and recusals are “suasponte,” meaning made on their own initiative. In lower federal courts, a judge’s failure to recuse can result in litigants requesting that another judge be substituted. Taken to the extreme, failure to recuse could constitute depriving a party of due process and may be grounds for appeal. But there are no substitutes available at the Supreme Court, nor is there any place to appeal from the Court of last resort.
Legal scholar Charles Geyh calls the Supreme Court’s recusal function a “black box” and while justices may seek legal advice, including from the court’s legal office, their actions are not subject to review and no explanation is required. At the Supreme Court, justices’ failures to recuse themselves have attracted attention from across the ideological spectrum.
Supreme Slow Roll: Roberts Resists Congress
Roberts has tried mightily to insulate the Supreme Court from politics, an increasingly difficult task. He has also resisted calls for the Court to devise its own code of ethics or to appear before Congress. He recently declined an invitation from the Senate Judiciary Committee to appear and answer questions about how the Court intends to respond to the recent questionable behavior by its members. Chairman Dick Durbin (D-IL) was careful to mention Justice Sonia Sotomayor’s using Court staff to push sales of her book among the Committee’s concerns to show that ethics is not a partisan issue. Roberts cited separation of powers as his reason for not showing up, something Sen. Richard Blumenthal (D-CT) called “judicial malpractice.”
Durbin rejected Roberts’s reasoning and observed that sitting justices have testified at 92 congressional hearings since 1960. Durbin was particularly miffed that his polite invitation was rebuffed at a time when some Democrats were calling for Justice Thomas’s resignation or at least that he be subpoenaed to appear before the committee and explain himself. (A subpoena for any justice would be an extreme step and one that hasn’t gone well for Congress. Back in 1953, the House UnAmerican Activities Committee subpoenaed Justice Tom Clark. Clark was a no-show and the HUAC Committee let it go rather than risk an interbranch melee.)
Republican senators have also been frustrated with the Court’s repeated failure to act on the ethics code. Minority Leader Mitch McConnell (R-KY), Sen. Lindsey Graham (R-SC, ranking on Judiciary), and Sens. Thom Tillis (R-NC) and Lisa Murkowski (R-AK, both on Judiciary) have all expressed their view that the Court needs to clean up its own act.
Congress Reluctantly Enters the Fray, Over and Over Again
Both sides of the political aisle in Congress have been troubled by the Court’s unwillingness or inability to police itself. When Donald Trump came into office with Republican majorities in both chambers in the 115th Congress, the call for ethics reform focused on then-Justice Ruth Bader Ginsburg’s candid, critical remarks about the President, which she later called “ill-advised.” A bill proposed in the 115th would have tasked the Supreme Court itself with promulgating a code of ethics but failed to pass. By the 117th Congress, newly empowered Democratic majorities considered a Supreme Court code of ethics so important that they included it in H.R.1 and S. 1, the For the People Act. The bill passed the House but was blocked in the Senate.
In 2021, Sens. Graham (R, SC) and Sheldon Whitehouse (D-RI) wrote to Roberts—twice—urging the Supreme Court to fall into line with the lower courts’ policies. In May 2022, the House Judiciary Committee voted 22-16 to require the Supreme Court to adopt rules for travel, gifts, and outside income. And yet, there are still no signs of progress from the Court.
A Sampling of Options
The Roberts Court has been remarkably adept at evading Congress’s repeated demands that it create a code of ethics. Suggestions for reform abound nonetheless. One imaginative idea comes from congressional scholar Norm Ornstein, who proposes an independent Office of Judicial Ethics (OJE) modeled on the Office of Congressional Ethics (OCE) in the House. It would be comprised of retired judges, former ethics officials from various agencies, and ethics experts at law schools who could advise the justices before they accept gifts or trips and recommend a range of sanctions for violations.
Another proposal comes from the nonpartisan watchdog Project On Government Oversight (POGO), likely prompted by Justice Thomas’s wife Ginni’s receiving funds from a conservative activist and encouraging then-Chief of Staff Mark Meadows to back Trump’s claim that he had won the 2020 election. POGO’s proposal would encourage close family members to avoid political activity that “could appear to compromise a justice’s impartiality.” (Thomas did not recuse himself from cases involving the 2020 election.) It would also discourage justices from appearing at overtly ideological events.
The ABA weighed in with recommendations to “increase transparency when a judge recuses or is asked about recusal,” noting the lack of consistency in recusals, particularly at the Supreme Court. It also adds disclosure for immediate family member’s income. As for enforcement, the ABA leaves that up to the Court and provides the example of advisory opinion boards used by state bar associations.
What about simply applying the existing code of conduct for lower courts to the Supreme Court? Regardless of the separation of powers issue Roberts raised, practical objections about enforcement make this option tricky. The Judicial Conference is comprised of judges from “inferior” courts, so the argument goes that it would be inappropriate for them to make rules for the “Supreme” Court. In any case, it would be awkward to have lower-court judges ruling on matters involving the same justices who could in turn overturn their rulings. Another problem: While lower-court judges can be replaced by their colleagues when they recuse themselves, Supreme Court justices can’t be. Recusals increase the likelihood that the justices may split evenly over a case and thereby forego the opportunity to articulate a binding precedent.
What Can Congress Do?
Unfortunately, none of Congress’s tools are well-suited to compelling the Court to act. Congress has choices, but none of them are good:
The obvious: Withhold funding. Fifteen Senate Democrats want to add language to the appropriations bill funding the Court that would insist on a transparent, enforceable code of ethics. Sen. Chris Van Hollen (D-MD), who chairs the Financial Services and General Government Subcommittee that funds the Court, has said he’s considering “all the options.” Republicans have howled that this would be a dangerous move given recent threats to justices’ personal security in the wake of the Dobbs decision repealing Roe v Wade. Adding any controversial amendments in a particularly fraught appropriations cycle widely believed to result in a government shutdown is also, of course, a difficult path, but it may be the easiest option.
The pointless: Theoretically, Congress could ask the Justice Department to appoint a special counsel to look into the problem. And then what? Pro Publica has already investigated the issue. Could the special counsel refer the case for criminal prosecution? On what grounds? What about respect for a co-equal branch of government? The DoJ nosing around in the Court’s internal affairs would no doubt raise separation of powers questions.
The disproportionate: Impeachment. Congress already has a mechanism to remove justices for egregious misconduct. But does failure to disclose occasional weekends living like a rock star on someone else’s dime rise to the level of “high crimes or misdemeanors”? Best to leave that remedy for dire circumstances like abuse of power or inciting an insurrection.
The doomed: Legislation. There are at least three bills in play, only one of which has been reported out of committee, the Supreme Court Ethics, Recusal, and Transparency Act of 2023 (SCERT), which was introduced by Sen. Whitehouse in February—before the Pro Publica stories. Others include one from Sen. Chris Murphy (D-CT) and Rep. Hank Johnson (D-GA) that would establish a code and create something like an inspector general for the Supreme Court. Another comes from Sen. Murkowski (R-AK) and Sen. Angus King (I-ME), who had “real concerns” with SCERT and saw it as “way too prescriptive.” Instead, their bill would give the Court one year to implement a code that would be published on its website. It would require the Court to designate a person to receive complaints of code violations and publish an annual report.
Prospects for The Supreme Court Ethics, Recusal, and Transparency Act of 2023?
In a word, bad. The bill passed the Senate Judiciary Committee by a vote of 11-10. It’s a nonstarter in the Republican-controlled House, where the majority party hollers “weaponization” and sees the recent criticism of Justices Thomas and Alito as political payback from Democrats for Trump’s success in getting three justices installed on the high bench.
Among the bill’s provisions: Require the Supreme Court to adopt and publish a code of conduct within 180 days; establish a process for investigating alleged violations to be adjudicated by a panel of Circuit Court judges; tighten disclosure rules for gifts, travel, and outside income and apply the rules to law clerks as well as justices; require any parties filing amicus briefs to disclose who prepared the brief and their financial contributions to that entity; have the Administrative Office of the Courts (AOUSC) audit and report on compliance; and direct the Federal Judicial Center to track and report instances where judges recuse themselves. The Congressional Budget Office (CBO) estimated the cost to implement these measures over five years would be $5 million.
Everyone realizes this bill can’t pass on the Senate floor let alone be considered by the House. Nevertheless, Majority Leader Chuck Schumer (D-NY) might bring it up as a “messaging vote” anyway. It would force Republicans to filibuster and go on record as opposing ethics reforms. It would also keep the focus on the justices, a boon to Democrats who hope to capitalize on the Court’s unpopularity and remind voters of how high the stakes are heading into the 2024 elections. A floor vote would be a loss in terms of policy but a win in terms of politics for Schumer. Keeping the pressure on for good government reform would be a boon for all. Recent trends are worrisome, but the question of who should judge the judges is one for the ages, and for all parties.