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The Difficulties with Enforcing Ethics Rules at SCOTUS

Slate‘s Mark Stern has this essay, which quotes Fix the Court, on the challenges of enforcing the age-old recusal statute – which covers all federal judges, including Supreme Court justices – and the issues with our preferred fix, requiring the justices to abide by the formal Code of Conduct for U.S. Judges:

[…] It’s often claimed that Supreme Court justices do not follow any code of ethics, but that’s not quite right. In theory, the justices are supposed to follow the same code of conduct to which all other federal judges must adhere. Moreover, federal statutes governing recusal and financial disclosure apply to all federal judges, including the justices.

The problem is one of enforcement: There is currently no mechanism to force the justices to comply with these rules. If a lower court judge improperly declines to recuse herself from a case, a litigant can ask a higher court to adjudicate the dispute. But SCOTUS is, by constitutional command, the highest court in the land. There is thus no higher authority to step in when the justices do not adequately police themselves.

Congress has considered various solutions to this predicament. The late Democratic Rep. Louise Slaughter repeatedly introduced bills to increase transparency among the justices by declaring them bound to the ethical rules of the federal judiciary. Senate Democrats have introduced a similar measure that would obligate the justices to follow the judicial code.

Obstacles [to passing these bills] may be surmountable, but it doesn’t much matter so long as a majority of Congress remains indifferent to SCOTUS’s ethics. Controversies flare up now and then, [but] for the most part, Americans don’t appear especially worried about the justice’s relatively laissez-faire self-regulation.

We’re hoping to fix that indifference, of course, in a bipartisan way.

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