The Senate Judiciary’s Courts Subcommittee is holding a hearing today on Supreme Court ethics, recusals and the 21st Century Courts Act — a hearing that mirrored the House one on these topics last week, where FTC’s Gabe Roth testified.
Roth was asked to provide a statement for the Senate hearing. What he sent in is much of what he had to say on the House side, but it includes a vignette we’ll reproduce below (full statement here):
Today’s hearing marks the latest effort in what has been a lengthy nonpartisan campaign to bring greater ethics, transparency and accountability to the U.S. Supreme Court and to the federal judiciary as a whole. Before turning to the recently introduced legislation (S. 4010 and H.R. 7426, the 21st Century Courts Act of 2022), I would like to recap some of my own experiences in this work over the last decade.
In 2013, a year before I started Fix the Court, I helped run a panel event at the National Press Club titled “Supreme Court Transparency.” What the panelists said that day has stayed with me ever since.
After a round-robin discussion on cameras in the Supreme Court, the moderator, reporter Tony Mauro, pivoted to what other concerns the panelists might have with the Court’s openness or lack thereof. They had a lot to add.
Chief Justice of Ohio Maureen O’Connor said that SCOTUS’s self-professed “exceptionalism” should not make them exempt from basic measures of transparency.
Former D.C. Circuit Judge and U.S. Solicitor General Ken Starr Starr noted, that, contrary to the ethics code that applies to judges in the lower courts, there was no Supreme Court Code of Conduct, which, if one existed, might help the justices navigate their ethical responsibilities.
Former Acting U.S. Solicitor General Neal Katyal said that the federal recusal statute could use some clarification.
Mauro even asked this question to the panelists: “How can Congress help move toward more transparency in the Supreme Court?”
The next year, I started my organization, Fix the Court, but I set out on a strategy where I pushed the Supreme Court and the lower courts to open up without congressional intervention. Despite my many letters to the justices and the Judicial Conference, meetings and calls with federal judges and circuit executives, hosting events at the justices’ alma maters, staging protests at One First Street and other related activities, it became clear that the judiciary was not going to modernize itself.
Congress needed to act.