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First SCOTUS Transparency Hearing of 116th Congress Reveals Lawmakers' Consensus on Some Reforms, Misunderstanding on Others

Friday’s hearing in House Judiciary’s Courts Subcommittee on proposals to improve judicial ethics and accountability made two things clear: that members of Congress generally support the idea of a Supreme Court code of conduct and that there is a general misunderstanding about the lengths the judiciary already goes in order to protect the safety and privacy of its judges.

Though Profs. Amanda Frost of American and Charles Geyh of Indiana, along with Russell Wheeler of Brookings, testified that they believed it preferable for the justices themselves to create an ethics code, Fix the Court’s Gabe Roth was less sanguine on the prospect, knowing full well that the court has often demurred on the topic and that Justice Kagan’s March missive that Chief Justice Roberts was “working on” a code doesn’t instill much confidence. “Since we know the judiciary tends not to make these types of improvements of their own volition, Congress should write a law requiring it to do so,” Roth said.

On the proposal to require the judiciary to post annual disclosures online, Reps. Doug Collins, Martha Roby and Guy Reschenthaler expressed concerns about judges’ and justices’ privacy, even though online posting is already occurring, and the judiciary has broad statutory authority to redact any information it deems personal or private, such as a home address or loans for a child’s education.

Similar concerns were raised on the third proposal discussed, listing recusal reasons in orders list, even though, as Roth testified, legislation on the matter could be structured in a way so a disqualified jurist would simply refer back to the language of the recusal statute when announcing his or her recusal – e.g., that it was triggered by one’s finances, 28 U.S.C. §455(b)(4), or one’s family involvement, 28 U.S.C. §455(b)(5) – again without requiring private information to be revealed.

Roth pointed out during members’ questions that the Supreme Court has previously weighed in on disclosures in a pro-transparency way, though not in some time. First, the high court in 1981 allowed to stand a Fifth Circuit ruling upholding the constitutionality of the judiciary’s disclosure requirementDuplantier v. U.S., (p. 344 of the PDF); and second, Chief Justice Rehnquist in 2000 said there is nothing in the disclosure statute that would “provide for withholding the production” of disclosures from news outlets or members of the public who are expressly looking to post them online.

Other highlights included:

Amanda Frost, Professor of Law, American University Washington College of Law

On an ethics code: “The omission of the Supreme Court justices from the ethical rules that govern the rest of the federal judiciary undermines the goal of these laws; to protect the reputation of the third branch of government. Congress can and should change this.”

On recusals: “Congress should amend the recusal statute to require at a minimum that judges and justices provide an explanation for their decision to recuse or remain on a case when challenged.”

On a question posed by Rep. Roby about whether additional disclosure would encourage frivolous appeals over decisions not to recuse: “The parties have incentives themselves not to file frivolous appeals regarding recusal. Recusal is a very sensitive topic, and to file such a motion as a lawyer who appears regularly before the same judges – that’s a difficult thing for a lawyer to do… There’s already a great disincentive to file a motion to recuse – to take a frivolous appeal seems to me both in terms of the cost and the time that the lawyer would have to expend and the reputational hit that lawyer would take – it strikes me as something that would not be a big problem. And if it’s a truly frivolous appeal it can be resolved very quickly.”

On the potential for abuse by lawyers of judges providing recusal explanations: “Even if you get a judge recused, you cannot then pick the replacement judge. And rule 11 of the Federal Rules of Civil Procedure provides an ability to sanction lawyers who take action for improper purposes – and this would be a classic example of that.”

Gabe Roth, Executive Director, Fix the Court [written testimony here]

On an ethics code: “Do I believe that a SCOTUS ethics code would stop a judge or justice from speaking publicly about a presidential candidate or accepting gifts from a well-known political donor? Would it make a judge or justice reconsider appearing at an annual fundraiser for a partisan organization or sitting on a case involving a publishing company who has just paid her a hefty book advance? Maybe. That’s as good as I can give you: maybe. But that’s better that simply trusting these ethically murky practices – that are not covered in the recusal statute – will suddenly stop occurring each year.

“Remember, Congress has an Office of Ethics, two ethics committees and a Code of Official Conduct. The executive branch has the Office of Government Ethics and Standards of Ethical Conduct for Branch Employees. It follows that the Supreme Court should, at the least, have an ethics code.”

Russell Wheeler, Visiting Fellow, The Brookings Institution

On an ethics code: “It seems to me it is in the Court’s own self-interest to adopt a code and put to rest all these arguments as to why it doesn’t have a code and exhibit the seriousness about this that we haven’t seen from the court.”

Charles Geyh, John F. Kimberling Professor of Law, Indiana University Maurer School of Law:

On an ethics code: “I do think directing the court to do it would be a perfectly fine and sound idea. The issue then is: ‘would that be constitutional?’ I think the answer is, to me, ‘clearly yes.’ Article 1 section 8 authorizes Congress to make all laws necessary and proper for carrying in to execution all powers vested in the government of the United States. And a plain reading of that provision to me authorizes Congress to establish a Supreme Court that is fit for duty.”

On online disclosures: “In this day and age making information available to the public means making it available online. It’s the way we do business in the 21st century.”

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