Big news: The House Judiciary Committee has passed the Supreme Court Ethics, Recusal and Transparency Act (SCERTA), which would expand and modernize the federal recusal law to ensure justices’ and judges’ participation in proceedings is fully ethical and would require the Supreme Court to write and adopt code of conduct — and fix the decades-long oversight whereby only lower court judges have a formal ethics code.
This is a major victory for Fix the Court, which for seven-plus years has advocated for more modern and exacting ethics, recusal, travel and gift standards for the Supreme Court.
FTC urged that this bill — and not the single-issue Supreme Court Ethics Act nor the overly broad Judicial Ethics and Anti-Corruption Act — be marked up and advanced. For years, FTC said it’d be preferable for judges and justices to impose these standards on themselves, yet given their well-publicized reticence, FTC has long supported Congress stepping in and writing in rules for them.
“At a time when the Supreme Court has outsized power — over our personal privacy and health care decisions, over who can vote and who wins elections, over who can marry and who can unionize, and so much more — it is critical that the branch, including those at its apex, are subject to transparency and accountability rules that measure up to its might. This bill does that, and I thank Chairmen Johnson, Nadler and their colleagues for their leadership,” Fix the Court’s Gabe Roth said.
Fix the Court has catalogued more than five dozen ethics violations by members of the Supreme Court in recent years, 55 of which have occurred since FTC’s 2014 founding, underscoring the need for an ethics code as well as more rigorous recusal rules.
Justices are flying on major political donors’ private planes, are getting free perks at fancy hotels and are meeting with individuals who have cases before the court, all with impunity — and without a contemporaneous reporting system so the public and the parties can know in real time that these violations are occurring and can respond accordingly.
This bill, which passed 22-16 along party lines, would do the following:
— require SCOTUS to write and adopt a code of conduct for justices and employees;
— require SCOTUS to establish disclosure standards for gifts, travel and income received by the justices that at a minimum, mirror congressional standards;
— require recusal when a party has lobbied or spent substantial money for/against the confirmation of a justice/judge;
— require recusal when a party has given gifts, travel and/or income to judge/justice or family within six years of case assignment;
— require justices/judges to know their and their family’s financial interests and interests that could be substantially affected by cases before them;
— create path to full-Court consideration of a recusal motion;
— require brief explanations of justices’/judges’ recusal decisions to be posted online;
— require SCOTUS to issues rules requiring all parties and amici to list any lobbying or support for or against justices’ confirmation and any gifts, income, or reimbursements made to the justices within two years of case assignment
— authorize courts to strike amicus briefs that would require a judge to recuse.
A Senate companion of the HJC-advanced bill was also introduced tonight.
SCERTA is a more focused version of the Democratic-led 21st Century Courts Act of 2022 introduced last month and includes several provisions from the Democratic-led 21st Century Courts Act of 2020 and the Republican-led Judiciary ROOM Act of 2018, the latter of which was passed unanimously by House Judiciary three-and-a-half years ago.
Republican opposition to the provisions of the bill is seemingly a new development. For example, on a SCOTUS ethics code (cf., Sect. 2 of SCERTA), then-House Judiciary Ranking Member Doug Collins said in 2019, “I would like to work with the Chief Justice to adopt a [Supreme Court] Code of Conduct that accounts for the unique realities of being a Supreme Court justice while maintaining appropriate public accountability.”
On ensuring the third branch has the same disclosure rules as top officials in other branches (cf., Sect. 3 of SCERTA), Rep. Issa, who was the lead sponsor of the 2018 ROOM Act, said in 2016: “Everyone up here on the dais […] fills out an incredibly detailed but confusing form for financial disclosure, and it doesn’t happen the same way in the judicial branch. […W]hy should we not mandate, if we cannot voluntarily get from the court, a similar level of transparency for the question of possible conflicts of interest? […] I do not know who paid for trips by various justices and judges on a regular basis because it’s not disclosed with the kind of transparency that we have, and my understanding is there is much less limitation on who can pay for [such a trip].”
Unfortunately, Republicans today focused their remarks on the peaceful protests at justices’ houses and the leaks at SCOTUS, which had nothing to do with a years-long effort to bring accountability to the third branch.
“Judicial ethics is not a partisan issue,” Roth concluded, “and trying to make a bill that solves 50 years of inaction into a screed over what’s happened over the last 10 days is a huge waste of time.”