Fix the Court is calling on Congress to revise the Supreme Court ethics code section of H.R. 1 and S. 1 in order to ensure that it’ll have a better chance of coming to fruition and more easily pass constitutional muster.

Currently, the bill calls for the Judicial Conference of the United States to essentially write two ethics codes – one for all federal judges not on SCOTUS and one for SCOTUS. A preferable method would keep the Code of Conduct for U.S. Judges as is and require the Supreme Court — not the lower court judges who comprise the Judicial Conference — to draft its own ethics code.

“Even though some detractors have noted that a conduct code would not be fully enforceable at the Supreme Court, given there’s no real recourse for non-compliance, there’s inherent value in what it symbolizes,” FTC’s Gabe Roth said. “Turns out, I’m not alone: 86% of Americans favor implementing a SCOTUS ethics code,” according to a 2018 FTC poll.

Background:
The planning for H.R. 1 began soon after the Democrats won back the House in Nov. 2018. FTC was approached by congressional staff working on the bill who said they were considering including a Supreme Court code of conduct provision. FTC counseled that, as a nod to bipartisanship, they might use the ethics code language from the Judiciary ROOM Act, a bill introduced by House Republicans that had passed House Judiciary unanimously two months prior.

They agreed, and the language is side by side below.

In early 2019, FTC heard from sources that the justices had read the ROOM Act and balked at the idea that the lower court judges on the Judicial Conference would write an ethics code for them. FTC changed tactics, and the language that FTC now supports ended up in last year’s 21st Century Courts Act, e.g., “the Supreme Court [shall] promulgate a code of conduct for the justices of the Supreme Court.”

This is consistent with what Justice Kagan told a House panel in March 2019: “The chief justice is studying the question of whether to have a code of judicial conduct that is applicable only to the United States Supreme Court. […I]t’s something that’s being thought very seriously about.”

It’s also consistent with what three judicial ethics experts told a House panel that June: SCOTUS should have an ethics code, and SCOTUS should be the ones to write it.

This past December, when it became clear that Democrats in the House and Senate were going to reintroduce a version of H.R. 1 in this Congress, FTC asked congressional staff to consider changing the ethics text to the language in the 21st Century Courts Act.

FTC hasn’t been successful to date but, we’re hopeful that should the bill go to markup in the Senate or conference it’ll be changed there.

-> Sept. 2018 ROOM Act text:

“Not later than one year after the date of the enactment of the Judiciary ROOM Act of 2018, the Judicial Conference shall issue a code of conduct, which applies to each justice and judge of the United States, except that the code of conduct may include provisions that are applicable only to certain categories of judges or justices.”

-> Jan. 2019 and Jan. 2021 H.R. 1 text:

“Not later than one year after the date of the enactment of this section, the Judicial Conference shall issue a code of conduct, which applies to each justice and judge of the United States, except that the code of conduct may include provisions that are applicable only to certain categories of judges or justices.”