The Bridge: Judgement Calls

We need guardrails in the Marble Palace

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With what judgment ye judge, ye shall be judged

The Supreme Court can strike down laws passed by Congress. They can stop enforcement of presidential policies. The practically irreversible decisions the justices make on any given day can completely upend the status quo in our nation. That is an immense amount of power in the hands of just nine individuals. Outsized power can mean outsized consequences — and the lack of an explicit code of ethics for Supreme Court justices threatens just that. Any reasonable person would argue that those making such mighty judgment calls should be judged at high standards themselves. So why isn’t that the case?

In this edition:

  • A massive concentration of power
  • And a lack of accountability and ethics
  • Makes for a bad combination
  • But there’s a solution!

As you know, last year saw several monumental decisions by the Supreme Court. The reversal of Roe v. Wade put the immense power and politicization of the Supreme Court in full view. A code of conduct and explicit ethics guidance for the court could be a useful tool for dismantling that politicization. My colleague, Director of The Constitution Project at POGO Sarah Turberville, submitted testimony to the House Judiciary Committee on the issue of Supreme Court ethics last month. You can read Sarah’s testimony on our website. My gratitude goes to her for her help while I wrote this edition.

Protecting Supreme Court Impartiality Through Ethics Reform

But first, some context

The Supreme Court is comprised of nine justices who each serve for life, holding their positions until retirement or death (or removal after impeachment, which has never happened in the history of the court). They hear less than 1% of the cases appealed to them in a year and have absolute control over which cases those are. The full panel hears every case. Though life tenure was intended to insulate the court from party politics, it comes with enormous costs. The infrequent turnover and massive concentration of power have made it so that capturing the court is a key way for a party to maintain political power. POGO released an excellent two-part video series on the politicization of the court a few years ago. I highly recommend you give those videos a watch to better understand how this all fits together.

Part 1: Why justices have too much power (Video)

Part 2: A case for a more accountable court (Video)

There’s really no code of conduct?

The Supreme Court is the only judicial body in the country not governed by a code of ethics. Even the lowest-level federal employees must abide by certain ethics rules, but Supreme Court justices are trusted to self-police. There are currently no prohibitions on questionable partisan conduct, such as, say, publicly chiding a presidential nominee, or allowing oneself to be wined-and-dined by an anti-abortion organization. And though justices are required to disclose certain financial assets and transactions, other investments and spousal finances are allowed to fly under the radar.

I’ll be the judge of that

Though justices have a blanket obligation to recuse from any case in which a reasonable person could question their impartiality, it is not explicit when recusal is required, and only the justices themselves decide when to step back from a case. No one else can make that call for them. Since the cases they’re hearing are so consequential, and because there’s no punishment for failing to recuse, it could make the justices less likely to sit out cases, even if there is a legitimate conflict of interest.

And even when they do recuse themselves, the justices aren’t required to explain why to the public. We’re left in the dark about the conflicts of interest justices may have, leaving us incapable of holding them to account for any cases in which they failed to recuse.

A lack of transparency and accountability fosters bad behavior. This is not just speculation. Sarah pointed out in her testimony that every justice who has served in the last decade has participated in eyebrow-raising behavior, including, in many instances, failing to recuse.

Play by the rules

Rather than trusting the justices to make judgment calls about their own behavior, we desperately need to set ethical guidance to protect the Supreme Court’s integrity.

This guidance must, at the very least:

  • make explicitly clear when a justice is required to recuse;
  • make details about recusals and conflicts of interest transparent to the public;
  • make disclosures of both personal and spousal financial entanglements mandatory; and
  • prohibit partisan conduct and appearances of political affiliations.

The Supreme Court Ethics, Recusal, and Transparency Act, which was introduced in the House last spring, would be a good place to start.

The legitimacy of the Supreme Court rests on our trust. And our trust in the court’s integrity is what gives its rulings any authority. If we can’t trust our justices, the whole institution crumbles.