Fix the Court executive director Gabe Roth offered remarks at the April 23 press conference noting the introduction of the Supreme Court Ethics Act of 2015:
Good afternoon. I want to start by thanking Senator Murphy and Congresswoman Slaughter for introducing the Supreme Court Ethics Act of 2015 in their respective chambers.
Your leadership on judicial issues transcends politics. It’s selfless – it’s not being done for the people of Connecticut or Rochester; it’s for all Americans – that we can be sure our nation’s top judges are held to the highest ethical standards – a simple, yet powerful idea. So for that, I thank you.
My name is Gabe Roth, and I am executive director of a group called “Fix the Court.” Founded last year, Fix the Court advocates for changes that would lead to a more open and accountable Supreme Court.
Yes, we want cameras in the Supreme Court or at least live audio. And the justices should place more information about their cases online. But ethics goes to the very core of what we mean when we say “accountable.” Unfortunately, the justices are currently – and curiously – exempt from the code of conduct that the rest of the federal judiciary is required to follow.
It should strike anyone as strange that our country’s most powerful interpreters of the law are permitted to opt out of the code that binds all their colleagues.
While it’s true that the justices are required to follow certain conflict-of-interest laws – they can’t rule on a case in which they have a family member involved, for example, or a financial interest – that doesn’t go far enough.
The code of conduct prohibits justices from commenting on a case while it’s before the court. It prevents them from participating in partisan events. It prevents them for engaging in activities that have even the appearance of impropriety.
To my knowledge, none of the justices has committed an impeachable offense. But our research has shown – and you can look this up at fixthecourt.com/justices – that all nine have been culpable of various ethical oversights, from leaving assets off their financial disclosure reports to speaking at partisan fundraisers to ruling on cases despite credible conflicts of interest.
To mention but one example, Justices Scalia and Ginsburg are great friends and opera lovers, and on various occasions they’ve offered their views on same-sex marriage at public events, even as they and the rest of the country knew the issue would return to the high court, as it is this Tuesday.
Justice Anthony Kennedy once responded to question from Congress about why the justices were not bound to the code by saying, “It’s potentially difficult for lower court judges to make rules” – i.e., the code of conduct – “that are binding on us” – the nine Supreme Court justices.
But that would be like Major League Baseball using the minors as a laboratory for speeding up the game and then saying, “We can’t implement any such changes because major leaguers haven’t been subject to them yet.” It’s a logical fallacy. And of all people, the justices should understand the validity of the famous phrase that “no one should be the judge in his own case.”
One final point: legal scholars believe that since Congress can legislate institutional changes to the high court – from dictating the number of justices who sit on it to the court’s annual budget – it may use its statutory authority to compel acceptance of the code of conduct. So, again, I want to thank Senator Murphy, Congresswoman Slaughter and their Article I colleagues for their leadership here – and for reminding us that the Constitution was written in a certain order for a reason.
The bottom line is this: the Supreme Court decides who can marry, who can vote, what regulations our businesses face, and, in another major case to be argued next week, they rule on matters of life and death. Enacting a binding code of conduct would compel the justices to create uniformity around thorny issues like recusals and participation in political activities – and would bring them closer to the public’s expectations of accountability from government officials.
Ethics is not a partisan issue, so I’m hopeful that leaders of both the House and the Senate Judiciary Committees will back today’s proposal, put a hearing on the calendar and hold a committee vote soon after. We can make it happen. Thank you.