SCOTUS Ethics Bills Take Different Tacks at Accountability, With Both Being Improvements Over the Current State of Affairs
Fix the Court is endorsing two SCOTUS ethics bills introduced in Congress yesterday that create original, constitutional solutions for dealing with the lack of accountability at our nation’s highest court.
The Supreme Court Ethics Act, led by Sen. Murphy and Rep. Johnson, would establish a statutory ethics officer and a process for filing complaints against the justices for violating ethics rules. The Supreme Court Ethics, Recusal and Transparency Act, led by Sen. Whitehouse and Rep. Johnson, also includes a complaint process and creates a panel for reviewing justices’ indiscretions. (More on that below.)
The bills come as ethics questions continue to swirl around the nine. Chief Justice Roberts failed to mention the rising number of SCOTUS scandals — whether in relation to the Dobbs leaks, the Hobby Lobby leak or otherwise — in the annual report he released six weeks ago. Judicial spouses can’t seem to stay out of the news. And several reports yesterday noted that while the justices have been “considering” the adoption of an ethics code for years, they can’t seem to complete the task. What’s more, earlier in the week and for the first time in its history, the American Bar Association’s House of Delegates passed a resolution urging SCOTUS “to adopt a code of judicial ethics binding on justices.”
“There’s currently no way to file a formal complaint against a Supreme Court justice for violating basic ethics rules — not when they fail to recuse from petitions despite obvious conflicts of interest, nor when they accept lavish gifts and travel, nor when they’re the willing target of a partisan influence campaign. These bills would fix that oversight by creating accountability processes — and, in focusing on the advisory nature of the process, do so in a way that can function within our constitutional order,” Fix the Court’s Gabe Roth said. “I applaud Sens. Whitehouse and Murphy and Rep. Johnson for this work and for normalizing the view that Supreme Court justices are not infallible because they’re final — rather, they’re not infallible, period, and they need the same ethical guardrails that exist in the other branches and in the lower courts.”
The Supreme Court Ethics Act
The complaint process that exists in the lower courts does not apply to SCOTUS1. SCEA would create the position of an Ethics Investigation Counsel who could take in complaints from the public about potential violations of the code of conduct by the justices. (The bill also requires the creation of such a code.) The EIC would then issue an annual report describing the complaints filed during the year as well as “any steps taken to investigate, resolve, or rehabilitate the conduct detailed in the complaint.”
The Supreme Court Ethics, Recusal and Transparency Act
SCERT 2.0, on the other hand, would deputize the chief judges of the 13 circuits to act as the body that would accept complaints about justices’ conduct that violates the recusal law or otherwise “undermines the integrity of the Supreme Court.” SCERT 2.0 requires the panel to create complaint procedures modeled after the 1980 judicial misconduct law that covers lower court judges, though any single complaint would be reviewed by just five of the 13 selected at random. The panel could conduct investigations, hire outside help and subpoena documents and testimony. In the end, it would present its findings and recommendations to SCOTUS, who’d then bear the responsibility for taking action.
The idea that the public should be able to file complaint against justices is not new, but the challenge has been creating a protocol that is constitutional, given Article III’s “one supreme Court” provision, along with separation-of-power concerns (e.g., would you want, say, the FBI investigating the justices, and if so, under what circumstances?).
Under SCEA, the EIC would be a statutory officer, much like the Counselor to the Chief Justice, who’d have some specific powers but who’d also have incentive not to go on an inquisition, since he or she could be removed by the justices.
SCERT 2.0 also formalizes a process that already somewhat exists: as recently as last month Chief Justice Roberts noted that he consults advisory opinions published by a Judicial Conference Committee (i.e., lower court judges) when assessing ethical conundrums. This bill effectively substitutes that Committee (which has arguably given up on ethics reform of late) for the chief judges’ panel and gives them many of the same investigatory powers that exist for inquiries into lower court judges’ conduct.
More than a complaint process
SCERT 2.0 is nearly identical to the Supreme Court Ethics, Recusal and Transparency Act that was introduced in the House and Senate last Congress and that passed House Judiciary in May 2022. Beyond the provisions noted above, it would:
— Require a brief explanation whenever a judge or justice recuses from a case or petition (SCEA includes this, as well);
— Require the justices to file post-travel disclosure reports within a few weeks of their return, as members of Congress do;
— Create a process in the lower courts by which a party may submit a motion for recusal that would be reviewed by judges from other courts;
— Create a process at the Supreme Court by which a party may submit a motion for a justice’s recusal that would be reviewed by the other eight justices;
— Require disqualification when a judge or justice has received within the previous six years income, travel reimbursement or a gift from a party or their counsel; and
— Require disqualification when a party or counsel has spent substantial funds in support of the confirmation of the judge or justice.
Many of the bill’s provisions are bipartisan. For example, a SCOTUS ethics code and recusal explanations were part of the GOP-led bill that passed House Judiciary unanimously in 2018. Similar travel provisions were included in a bipartisan 2019 bill that may be revived later this year.
1. To use two examples of what a complaint might look like, FTC recently sent an informal complaint to the Chief Judge of S.D. Iowa when one of its judges publicly maligned then-President Trump, leading to a formal apology. FTC sent a formal complaint to the Fourth Circuit due a D.S.C. judge’s alleged double-dipping; that resulted in the rewriting of the judge’s post-employment agreement.