The Journal ran this letter to the editor from Fix the Court executive director today:

Regarding your editorial “Biden’s Court-Smacking Plan” (July 26): Supreme Court reform is grounded in the idea that an institution as powerful as the Supreme Court should work within an ethical framework similar to what the lower federal courts, or the other branches of government, operate in.

Here’s an example of what that might look like: Each year about 1,400 complaints are filed against lower-court judges, and each year judicial officers correctly dismiss the 98% to 99% of them that are submitted by vexatious litigants or have nothing to do with judicial ethics.

The few complaints that appear meritorious can then be reviewed by a panel of judges, who may open an investigation to learn more about an alleged incident. The panel may choose to dismiss the complaint, or it could issue a reprimand or recommend recusal, ethics training or financial-disclosure amendments, among other remedies.

This structure is often referred to as “enforceable ethics,” and without imperiling judicial independence, it could easily apply to the justices. Justice Elena Kagan recently contemplated “some sort of committee” appointed by the chief justice and composed of “highly respected judges with a great deal of experience [and] with a reputation for fairness” to do the work.

What’s more, Justice Kagan said, this committee could even “protect [justices] who haven’t violated” the ethical canons but have unfairly been singled out. That means complaints over Jane Roberts’s job, Justice Clarence Thomas’s clerks’ Venmo histories, Justice Samuel Alito’s mineral rights, Justice Neil Gorsuch’s and Justice Amy Coney Barrett’s home sales and Justice Brett Kavanaugh’s party attendance—none of which were scandalous, yet all of which were given ink—would be sent to the trash.

Now imagine such a committee is created, and the same interest group files myriad complaints or lobs recusal motions in case after case. You think the justices would take kindly to that sort of grandstanding, or that a member of the Supreme Court bar would sign on to such frivolity? Of course not. Such a “free for all,” as the editorial board describes it, would not be worth the reputational risk.

Meanwhile, the “highly respected judges” committee would review actual lapses (none of the nine is blameless) and could recommend remedial steps. No one could force the justices to take them, but assuming we’re talking about serious issues, and since the recommendations would be coming from their fellow jurists, I’m betting they would.

Gabe Roth
Executive director, Fix the Court