Congress, Don’t Lose the Plot on Judicial Ethics
The nation’s least accountable branch of government — the federal judiciary — is finally getting some much-needed scrutiny of its ethical lapses and misdeeds. On May 13, President Joe Biden signed the Courthouse Ethics and Transparency Act into law, which will provide a modicum of transparency for judges’ potential financial conflicts. Congress has held three hearings in as many weeks on additional Supreme Court ethics reform. The House Judiciary Committee even advanced the Supreme Court Ethics, Recusal, and Transparency Act, which will require the court to develop an ethics code and fill some other key gaps in the court’s ethics framework.
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Yet despite this progress, we’re worried that Congress is still managing to lose the plot and give in to the temptation to politicize everything to death. Listening to the hearings, one might think Supreme Court ethics reform was a hyper-partisan attack on the court instead of what it really is: a commonsense good-government reform, backed by nearly three-quarters of the U.S. public and aimed at enhancing the efficacy and credibility of the judiciary as a whole.
At the hearings, members of Congress described ethics reform as all kinds of things: an effort to bully the justices; a precursor to impeaching them; an attempt to paint conservative justices as corrupt while overlooking the transgressions of the liberals (and vice versa); a sexist or racist attack on Virginia Thomas and her husband Justice Clarence Thomas; a way to hold the court accountable (or punish it) for a decision likely overruling Roe v. Wade.
None of these characterizations is accurate. Ethics reform for the Supreme Court is simply about making sure that nine of the most powerful people in the country have the same sort of rules in place as every other federal judge, member of Congress, and just about every other government employee. No more, no less.
Let’s back up and describe the problem. There are a handful of rules in place for Supreme Court justices — they are required to file basic financial disclosures and recuse themselves from cases where they have, or appear to have, conflicts of interest. But the most charitable way to describe current Supreme Court ethics rules would be insufficient. The justices’ financial disclosures don’t even cover things like gifts or travel, and justices frequently decline or fail to recuse themselves, either because they believe they are beyond reproach or because they don’t realize what financial or personal entanglements they have. And unlike every other judge in the country, the justices are not bound by any code of conduct. This is to say nothing of the Herculean challenge of creating accountability for individuals who enjoy life tenure.
The ethics reform bills Congress has been discussing would simply fill these gaps. They would strengthen recusal standards, require more disclosure about the justices’ finances and who funds groups that file amicus briefs, and instruct the court to develop a code of conduct.
To be sure, recent news about the court has been especially troubling. We haven’t been shy about sharing our concerns about the bizarre and inappropriate conduct of Justice Clarence Thomas and his wife Virginia Thomas. We believe that, since the law requires recusal when there could be even the appearance of a conflict, the justice should have recused from the case regarding the January 6 committee’s access to records from the Trump White House, given his wife’s personal involvement in the events leading to the attack on the Capitol. And we think he must recuse from similar cases in the future. And we are gravely concerned about the leaked Supreme Court draft opinion, which signals the potential for a broad rollback of constitutional protections for individuals.
But we and our colleagues at POGO have been calling to strengthen ethics rules for years, long before the recent news. In making our argument for reform, we’ve consistently pointed out that no ideological wing of the court has a monopoly on ethical missteps. We’ve repeatedly called out the late Justice Ruth Bader Ginsburg for her comments criticizing then-candidate Donald Trump, Justice Elena Kagan for failing to recuse from the Affordable Care Act case, Justice Brett Kavanaugh’s threats of partisan revenge at his confirmation hearing, to name just a few. As our friends at Fix the Court have noted, every justice in the last decade has done something that likely counts as an ethics violation, further highlighting the nonpartisan need for these reforms. We would have welcomed ethics reform in the wake of any of those instances.
This track record helps explain why we need reform, but it’s a mistake to think that improving the rules is about any given past incident. Ethics rules are future-oriented by nature. They don’t punish people for past actions — they work to prevent future problems and provide for accountability when violations do occur.
Crucially, ethics rules aren’t designed to change how the justices analyze cases or affect the outcome of any particular case. Indeed, unless a ruling was somehow the result of unethical behavior, the court’s decisions and its ethics rules should have little to do with each other — and of course, preventing unethical behavior from influencing rulings is one of the basic requirements for a fair judiciary. The entire point is to ensure that the justices’ integrity is beyond reproach, and that even the appearance of impropriety compels a judge to step aside from a case.
What ethics rules are really about is giving the public confidence that there are guardrails in place to ensure that cases are decided fairly and impartially. They provide a common understanding of what is and isn’t within the bounds of the high expectations we place on all judges, and on Supreme Court justices in particular. That’s the essence of good government, and it would be a shame to let it get lost amid the court’s other controversies. Lawmakers from both parties should turn the temperature down and join together in this effort to save the courts and bring the judiciary in line with the rest of those in government service.
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.