Promoting Judicial Ethics with the 21st Century Courts Act

The Honorable Sheldon Whitehouse Chairman Senate Judiciary Committee Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights Room 706, Hart Senate Office Building Washington, DC 20510

The Honorable John Kennedy Ranking Member Senate Judiciary Committee Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights Room 706, Hart Senate Office Building Washington, DC 20510

Dear Chairman Whitehouse, Ranking Member Kennedy, and Members of the Subcommittee:

We write on behalf of the Project On Government Oversight (POGO) to applaud the Subcommittee’s attention to judicial ethics and express our support for the 21st Century Courts Act. As we recently testified to the House Judiciary Committee, the bill will take crucial steps toward ensuring a Supreme Court governed by the highest ethical standards.¹

Founded in 1981, the Project On Government Oversight is a nonpartisan independent watchdog that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing. We champion reforms to achieve a more effective, ethical, and accountable federal government that safeguards constitutional principles.

Last year, we convened a task force of experts — including former judges with varied ideological backgrounds — who issued a report, Above the Fray, containing several recommendations to turn down the temperature on Supreme Court selection and enhance the court’s legitimacy.² While many potential Supreme Court reforms are the subject of considerable debate, there is wide support for improving Supreme Court ethics rules, which would serve a critical role in restoring the public’s faith in the court. The creation and implementation of strong ethics rules can and should begin, regardless of any other reforms.

Strengthening Supreme Court ethics requires a multifaceted approach that should address several key substantive shortcomings in the current ethics regime: the absence of a code of conduct, inadequate recusal standards, and a lack of transparency.

The recently introduced 21st Century Courts Act is a commendable step toward addressing many of these issues. Ethics reform is neither partisan nor personal. Lapses are not limited to justices who ascribe to a particular judicial philosophy or were nominated by presidents of one party or the other. Every justice who has served in the last decade has done something that has raised questions about propriety and impartiality.³

While ethics reform must be informed by past incidents, it is fundamentally a forward-looking effort, one designed to ensure the Supreme Court has the best possible system in place to support the public’s faith in the institution.

Below, we describe priorities for the committee to address as it considers the 21st Century Courts Act and future legislation.

The Need for Supreme Court Ethics Reform

As the most prominent judges in the country, there is little doubt that justices of the Supreme Court have a significant influence on the public’s understanding of the workings and role of the courts, and — consequently — on their trust in the judiciary’s commitment to fairness and impartiality. The concentration of power among just a handful of people on the court underscores how vital it is for justices to comport with a robust ethical framework.

There are a handful of statutes, case law, and norms that currently provide a basic — and insufficient — ethics framework for the Supreme Court. Section 455 of Title 28 of the United States Code specifies when judges and justices must recuse themselves from a proceeding. It contains a blanket obligation to recuse whenever a judge or justice’s “impartiality might reasonably be questioned.” ⁴ The Ethics in Government Act of 1978 also confers limited ethical responsibilities by requiring federal judges, including Supreme Court justices, to submit annual financial disclosures.⁵

However, these laws have gaps that undermine their aims — and Chief Justice John Roberts has publicly cast doubt on whether these laws are actually binding on Supreme Court justices.⁶ And members of the nation’s highest court are not covered by the Judicial Conduct and Disability Act of 1980, which created a process for the filing and investigation of complaints and for discipline of federal judges.⁷

According to Chief Justice Roberts, the Supreme Court justices also consult the “Code of Conduct for United States Judges,” which does not formally apply to the justices but governs the conduct of judges in lower federal courts.⁸ But episodes over the last two decades — including several in very recent memory — have made clear that the Supreme Court’s informal consultation of the code is not sufficient. Appearances matter in government ethics, and the inadequacy of the Supreme Court’s ethics rules sends a signal, even if unintended, that the justices are above the standards for every other judge.

The 21st Century Courts Act makes important progress toward addressing this situation. It would require the court to develop a code of conduct, clarify and strengthen recusal standards, and ensure transparency for financial and other sources of conflicts.

The Importance of a Code of Conduct

Every other federal judge is bound by a code of conduct.⁹ The only exceptions are the most visible and consequential jurists in the land — the justices of the Supreme Court. It is time to fix that.

Having been entrusted with great power, the justices owe the public not only a commitment to the ethical use of power, but also a conspicuous demonstration of their ethical conduct. While the simplest solution may be to apply the Code of Conduct for United States Judges to the Supreme Court as well, the existing code of conduct for lower federal court judges does not address a number of issues that are particular to the ethical conduct of Supreme Court justices, such as disqualification and the impact of public appearances and other off-the-bench conduct. The 21st Century Courts Act directs the court to create a code for itself, an approach that closes this glaring gap while respecting the court’s authority.¹⁰

A Supreme Court code of conduct is a bipartisan idea whose time has come.¹¹ Even President Biden’s bipartisan Commission on the Supreme Court wrote, “experience in other contexts suggests that the adoption of an advisory code would be a positive step on its own, even absent binding sanctions.”¹²

Addressing Recusal

On its face, the federal law that governs recusal standards for federal judges applies to Supreme Court justices as well.¹³ But unlike lower court judges, recused Supreme Court justices cannot be replaced, making their recusal decisions even more consequential. Supreme Court ethics reform must adequately account for unique circumstances facing a justice’s disqualification from hearing a case. The 21st Century Courts Act takes important steps to rebalance the justices’ current reluctance to recuse in any but the most extreme circumstances and would create a transparent and impartial system for recusal decision-making. Currently, when deciding whether to recuse, Supreme Court justices weigh the impact of an actual or perceived conflict of interest against concerns about the evenly split decision that could result from their disqualification. The often-counterproductive argument that justices have a “duty to sit,” — that is, to hear cases — has the effect of keeping justices involved where objective considerations would suggest recusal was prudent.¹⁴

Recusal for even apparent conflicts is far more beneficial to the court than having nine justices hear any given case.¹⁵ Any new code of conduct should critically examine the presumptions on which the “duty to sit” is based.¹⁶ As our task force emphasized, recent history and scholarship have shown that an even-numbered court is not a significant problem.¹⁷ In fact, the evidence suggests otherwise — the court may be more inclined to seek common ground and more modest and narrow decisions when faced with the prospect of an even split.¹⁸

Even so, there are reforms that could allay any concern about a split decision. The “duty to sit” is rendered moot if the court can replace a recused justice. While such a reform would be a departure, there is good precedent at the federal and state level. Retired Supreme Court justices already have the option of hearing cases as part of circuit court panels, and the law could be modified to allow them to fill in for recused justices as well.¹⁹ This practice is already in place in states like New Hampshire, where the law permits the state’s chief justice to randomly select a retired justice to temporarily serve if there is a vacancy left due to a disqualification.²⁰

The 21st Century Courts Act also adds much-needed detail to the recusal statute, specifying certain financial, employment, or organizational entanglements by judges or their families that require recusal.²¹ While the current law lists several specific scenarios, largely dealing with conflicts from financial or employment relationships, many scenarios fall under the law’s catch-all provision, which requires recusal when a reasonable person would doubt a judge’s impartiality.²²

Stronger recusal rules will have limited use if the enforcement mechanism is not improved. Currently, lower court judges and the justices decide for themselves if they can sit impartially on a case.²³ The justices’ recusal decisions (or refusals) lack even the rudimentary enforcement mechanism that exists for lower courts, where failure to recuse can be grounds for vacating a decision on appeal.

Any new ethics rules should seek to remove recusal decisions from the justice in question. This is especially important because the recusal statute defines many conflicts in terms of how a third party would view the judge’s conduct. It is no criticism of a justice’s temperament to note that they are poorly positioned to analyze their own conduct through this lens.

The 21st Century Courts Act addresses this problem by requiring justices to refer recusal motions to the full court.²⁴ This is in line with best practices from the states. States like Texas and California have rules that provide for a judge other than one with a potential conflict to make the disqualification decision.²⁵ These state supreme courts typically refer a recusal motion to the full court or authorize a party to appeal a justice’s refusal to recuse to the full court.²⁶

Greater transparency about recusal decision-making is also essential. Judges’ and justices’ reasons for recusal are often unstated; the Supreme Court’s decisions and orders simply note if a justice did not participate in an opinion or proceeding. The justices should explain their recusal decisions.²⁷ This would promote the development of a body of precedent to support consistent application of recusal, assist judges in identifying situations that require actions like divestments so that they need not recuse in the future, and help to rebuild public faith in the court by reaffirming that the public and litigants have a right to know why an individual in such a consequential position must step away from presiding over a case. The 21st Century Courts Act would require these explanations.

Addressing Questionable Conduct

Public actions that cast doubt on their impartiality are a common issue for Supreme Court justices, and any code of conduct for the court must provide guidance that helps justices avoid such actions, because even the appearance of impropriety can hurt the court. By directing the court to develop a code of conduct, the 21st Century Courts Act provides an opportunity to address conduct like the examples discussed below.

The most direct form of questionable conduct is statements from justices themselves. Justices have offered public comments that would lead a reasonable person to conclude that their impartiality and judicial temperament is impaired. For example, during his 2018 confirmation process, then-Judge Brett Kavanaugh implied that he would retaliate for what he perceived as unfair treatment during the process. He described the allegations of sexual misconduct against him as a partisan conspiracy and said that “what goes around comes around.”²⁸ In another well-publicized incident, in the midst of the 2016 presidential campaign, Justice Ruth Bader Ginsburg made public comments denigrating then-candidate Donald Trump. In an interview with the New York Times, she said: “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.”²⁹ Both later apologized for their comments, but each instance underscores how justices can at times act in ways that raise questions about possible biases toward the subjects of their comments.³⁰ While people may disagree on the severity of any given incident, that debate itself underscores the need for a clear set of rules.

A second area of concern relates to justices’ appearance before organizations that are perceived to be partisan — even if the organization does not identify as a political entity.³¹ While the code of conduct for federal judges encourages them to participate in charitable, educational, and civic activities, it prohibits them from participating in extrajudicial activities that “reflect adversely on the judge’s impartiality.”³² And the Judicial Conference already advises judges against participating in “law-related activity with political overtones” that would “give rise to an appearance of engaging in political activity.”³³

In 2020, the Judicial Conference issued a draft advisory opinion which would have specified that “formal affiliation” with the conservative Federalist Society and the progressive American Constitution Society would be inappropriate.³⁴ It was scrapped after nearly 200 federal judges — many of whom were associated with the Federalist Society — voiced opposition.³⁵

Despite the opinion’s retraction, its theory was sound. Justices Kavanaugh, Samuel Alito, Clarence Thomas, and Neil Gorsuch have all spoken at Federalist Society events.³⁶ Like their conservative counterparts, Justices Ginsburg, Stephen Breyer, and Sonia Sotomayor have all spoken at various American Constitution Society events while serving on the court.³⁷

To avoid even the specter of bias, the justices should avoid affiliating with organizations that cast doubt on the justices’ impartiality, as these distinctly ideological groups do. The code could mirror the example set by Chief Justice Roberts and Justice Elena Kagan, both of whom have avoided such appearances, potentially due to the heavy partisan perception these events create.³⁸

Improving Disclosures

Disclosure is a cornerstone of government ethics rules, giving the public insight into potential conflicts of interest and helping officials identify situations that would require their recusal. As mentioned above, Supreme Court justices are covered by some portions of the Ethics in Government Act’s disclosure requirements. The recently passed Courthouse Ethics and Transparency Act brings some additional transparency to judges’ financial transactions, which the 21st Century Courts Act will build on with additional disclosures related to travel and hospitality.³⁹ Because of the unique expectations of impeccable impartiality and even-handed judgment placed on judges, litigants and the public should also have access to certain non-financial information about the justices. Current processes for reporting public and private appearances by the justices are not adequate.⁴⁰ Ethics reforms should include robust rules requiring timely disclosure of justices’ appearances, regardless of their financial component; such rules would go a long way toward improving the public’s awareness of the justices’ actions, while also requiring judges and justices to scrutinize their extrajudicial conduct carefully so as to avoid the appearance of impropriety. Justices should also be required to disclose positions they hold in social and political groups, two categories of organizations currently exempted from the Ethics in Government Act’s reporting requirements.⁴¹

Finally, because the integrity of the judicial process is the responsibility of everyone who participates, Congress should also strengthen the reporting rules for parties and amici who appear before the court. The 21st Century Courts Act adds necessary rules in this area by requiring amici to identify their major funders.⁴² Such disclosures could help the court identify amici that would cause conflicts for justices, giving the court an opportunity to reject such briefs.

Conclusion

The country relies on the Supreme Court as the apex of the judicial branch. That is why the public must be able to trust that the court’s members are holding themselves to standards as high as the court’s power is vast. The role of Supreme Court justices is not so unique that they can’t be held accountable for the integrity of their public service. Public trust does not erode because we acknowledge the need for guardrails on the conduct of public servants; it erodes because of the lack of those guardrails.

Thank you for your work on this important issue. If you have any questions, please do not hesitate to contact David Janovsky ([email protected]), analyst at POGO’s Constitution Project, or Dylan Hedtler-Gaudette ([email protected]), POGO’s government affairs manager.

Sincerely,

Danielle Brian
Executive Director

Sarah Turberville
Director of The Constitution Project at POGO