In an op-ed for the National Law Journal, printed in full below, FTC executive director Gabe Roth calls on Congress to pass stricter misconduct rules for Supreme Court justices.
Taking a New Look at How We Handle Judicial Misconduct Allegations
By Gabe Roth
If a federal judge is accused of misconduct, a complaint may be adjudicated before a panel of judges within his or her circuit, called a judicial council, and a proper punishment may be doled out if the council reaches a finding of wrongdoing.
While this process is far from perfect — a disciplinary system whose foundation is judges judging their colleagues is biased toward the accused — the benefit is that there are intermediate steps the council may take short of removal, and the negative behavior may be ameliorated.
Culpable judges may be compelled to undergo sensitivity training courses, they may have cases removed from their docket or they may be publicly censured.
In practice, the wheels of judicial justice have been painfully slow at the federal level in recent years, as accused jurists have often retired or have taken senior status before receiving any meaningful penalty.
All the same, any system for adjudicating misconduct is better than no system for adjudicating misconduct.
In contrast, if a U.S. Supreme Court justice is accused of wrongdoing, there is no recourse or reprimand, save the high bar of impeachment. The Judicial Conduct and Disability Act of 1980, the vehicle that established the disciplinary regimen for lower court judges, expressly leaves out Supreme Court justices.
This all-or-nothing structure may act as a deterrent against bringing allegations of a justice’s misconduct forward.
Recently, it was reported that Justice Clarence Thomas allegedly groped a woman at a dinner party in 1999. Let me be clear. I am not calling for Thomas’ impeachment in the wake of this. But these allegations demonstrate the gaping holes in the system for monitoring judicial conduct that can and should be improved.
Those who would prefer keeping the justices outside of the federal misconduct statute may point to how the current system is often abused. (Lose a case? File a complaint!)
A commission on the law created a decade ago by Chief Justice William Rehnquist and led by Justice Stephen Breyer found that 88 percent of the misconduct claims filed from 2001 to 2005 were from prisoners or litigants, with the majority being frivolous.
During the same period, however, 15 claims of misconduct were serious enough that they were investigated by a special committee of circuit judges, and 32 more claims were settled only after “corrective action” was taken in the form of, quoting the Breyer report, “an apology, recusal from a case or a pledge to refrain from similar conduct in the future” by the offending judge.
The “corrective action” that can be employed at the lower court level seems like a reasonable strategy for addressing high court misconduct claims without throwing the country into the chaos that accompanies impeachment proceedings.
Others might argue that if the justices were to be included in the 1980 law, there would be a constitutional issue with how claims of misconduct would be investigated and adjudicated — for instance, potentially by lower court judges. But here I will appeal to the political nature of our current high court and how the Constitution, to paraphrase a famous quote often attributed to Charles Evans Hughes, is often what the majority of the justices says it is.
Chief Justice John Roberts Jr. is keenly aware of the politics surrounding his position, and I cannot imagine a scenario in which he and his colleagues would even hear a case about whether they should be included in the misconduct law, let alone strike it down.
The closest cognate — a 1979 case from the U.S. Court of Appeals for the Fifth Circuit on whether a post-Watergate law requiring federal judges, including Supreme Court justices, to file annual financial statements was constitutional — was denied review, meaning the statute stayed on the books.
Plus, instead of placing justices accused of misconduct within the judicial council structure, there exists a proposal — introduced several times in both houses of Congress over the past decade — to establish an inspector general’s office within the judiciary that could investigate claims of misconduct at every level of the third branch. This proposal has had the support of current and former chairmen of the House and Senate Judiciary Committees and should pass constitutional muster.
Finally, I would anticipate that some politically inclined individuals may say that efforts to include the justices in the misconduct law is essentially one party trying to impugn the other by making hay out of the Thomas allegations. To them, I present President-elect Donald Trump and former Congressman Anthony Weiner. Collectively, these three have represented both parties and all three branches of government (at least in aspiration). Sexually inappropriate behavior or alleged behavior, has no partisan bent, and efforts to eradicate it do not, either.
That men in positions of influence abuse, or are alleged of abusing, their posts and behaving in hurtful ways is not new. That we had a national conversation on the subject leading up to a presidential election, however, is beyond precedent and may be the momentum needed to improve the laws that allow alleged sexual misconduct in the halls of power to go unpunished.
Let’s start with the Judicial Conduct and Disability Act and take a fresh look at it. Doing nothing is not a suitable alternative.