Opinion | Congress Can Impose an Ethics Code if the Supreme Court Won’t
The Supreme Court will soon issue rulings, on affirmative action, student debt relief, and the First Amendment and gay rights, that have the potential to affect the American public for generations. And yet public approval of the court is at a historic low. This was true even before the seemingly endless stream of reports over the past few weeks about the justices’ lax ethics. Since a conservative supermajority took control of the court in 2020, it has blown through the guardrails courts are expected to observe — showing little respect for longstanding precedent, reaching out to decide bigger questions than it was asked to and relying on a secretive “shadow docket” to make hugely consequential rulings with no public explanation.
Even Republicans who are happy with the Supreme Court’s recent rulings are voicing their concerns. “What I would urge the court to do is take this moment to instill more public confidence,” Senator Lindsey Graham of South Carolina said during the Senate Judiciary Committee hearing on ethics at the Supreme Court on May 2. “I think we’d all be better off if they did that.”
Mr. Graham is right: The nine justices — unelected and employed for life — are shielded from the usual mechanisms of democratic accountability, and so they depend on a high level of public trust like no other institution of American government. Their failure to take the steps necessary to restore that trust, steps that are entirely within their control, is undermining their legitimacy as one of the country’s most vital institutions.
Instead the justices are behaving as though the same laws they interpret for everyone else don’t apply to them. They’re not entirely wrong. In most other government jobs, people can be fired for disregarding laws or ethical obligations, but the justices can be confident that they will face no consequences. Federal laws that explicitly apply to them — involving, for example, financial disclosures and recusal standards — are not enforced, leaving the justices to self-police, and the highest court is not bound by a code of ethics as the lower federal courts are.
Despite repeated requests, they have refused to adopt such a code, bristling at the suggestion that they do more to take these concerns seriously. Asked to appear at the Judiciary Committee hearing, Chief Justice John Roberts responded with a perfunctory letter that waved off the request with a vague reference to “separation of powers concerns” and “judicial independence.” In a speech to a legal group on May 23, the chief justice acknowledged that ethics was “an issue of concern inside the court,” and said the justices were considering ways to “give practical effect” to a commitment to abide by high standards of conduct.
At a moment of extreme distrust of government and institutions, this dismissiveness is not only disparaging of public opinion — it’s dangerous. The Times’s Adam Liptak wrote last year in a review of recent legal scholarship that the Roberts court “has rapidly been accumulating power at the expense of every other part of the government,” arrogating to itself the authority to make policy decisions on issues, such as climate change, that had long been the province of Congress or executive agencies. A court that thus wields an astonishing degree of power over the daily lives of hundreds of millions of Americans has also walled itself off from outside scrutiny, operating like an ecclesiastical city-state in the heart of the American republic.
The “separation of powers” was never meant to allow each branch the license to act without any involvement by the others. Rather, the American system of government is expressly designed for each branch to check the power of the others. A president can veto a bill passed by Congress. The Supreme Court can strike down an executive order or federal law. And Congress can regulate the size, jurisdiction and other administrative aspects of the Supreme Court, including judicial ethics, as it has going back to the first Judiciary Act in 1789 — a law that passed, notably, by a Congress that included many of the framers of the Constitution itself.
In recent years, however, Congress has failed to live up to its coequal status in the federal government, avoiding even mild confrontation with the Supreme Court. During the Judiciary Committee hearing, Mr. Graham said he did not want to “micromanage” the court by forcing it to adopt an ethics code. But this hands-off approach has allowed the justices to decide for themselves what rules to follow and whether or not to explain their reasoning to the public.
There is recent precedent for bipartisan action regulating the court. Last year, Congress passed a law amending its 1978 ethics law to require the reporting, in an online database searchable by the public, of stock transfers over $1,000 by all federal judges, including the justices. Already, justices have filed reports under this law, suggesting that they accept Congress’s authority to legislate in this area.
So the question is not whether Congress has the power to act, but what a meaningful ethics regime should look like. There are several bills, one bipartisan, making their way through Congress. They differ in their particulars, but most share the key principles that need to underlie any legislation.
First, the Supreme Court needs, at long last, a clear, comprehensive and transparent code of ethics. Whether Congress orders the court to draft such a code or imposes one itself, the point is the same: Underneath the mystique of their black robes, the justices are public servants, no less than members of Congress or judges on the lower federal courts, and they should be held to at least the same standards.
This would require frequent and detailed reporting of all travel and accommodations they receive — including donor names, dollar amounts and descriptions of gifts. If a justice sells real estate, as Neil Gorsuch did only days after taking his seat in 2017, he or she should be required to identify the buyer; Justice Gorsuch did not, even though his buyer was the chief executive of a major law firm that has regular business before the court. The object of these disclosures is to give the American public as complete a view as possible into the various potential influences on the court.
There should also be clear and consistent rules about when a justice should be recused from a case. At the very least, the justices should be required to explain their decisions on recusal to their colleagues and to the American people. This would have required Justice Clarence Thomas, for example, to defend his ongoing participation in cases involving the Jan. 6 Capitol attack even after it became public knowledge that his wife, Ginni, had been actively involved in the legal effort to overturn the 2020 election.
Second, the Supreme Court needs its own dedicated ethics officer, to field complaints from the public and advise the justices on their obligations in specific circumstances. This means the justices would no longer be left to rely on the advice of friends and colleagues, as Justice Thomas said he did in choosing not to disclose lavish gifts over the years from his friend Harlan Crow, a Texas billionaire who has been affiliated with at least one company with a case before the court. Ideally, an ethics officer would be akin to an inspector general for the court, empowered to investigate complaints, issue reports and create a body of precedent that justices can rely on.
Last and most difficult is the matter of enforcement. Even well-designed rules will not matter if the justices know that they will face no consequences for ignoring them. In the lower courts, judges who violate ethics rules are sanctioned by panels of appeals-court judges — their peers. That wouldn’t work in the Supreme Court, which sits at the top of the judicial branch.
Enforcement through the other branches faces other hurdles. Congress may impeach a justice, but it has done so only once, in 1804, and the Senate voted to acquit. Today’s partisan polarization makes impeachment and removal a virtual impossibility. Even in the case of clear lawbreaking, it’s hard to imagine the attorney general, regardless of party, prosecuting a sitting Supreme Court justice.
Still, adopting these proposed elements — a code, an ethics officer, a system for investigating and reporting on unethical behavior — would provide a constant reminder to the justices that they work for the American people. That would help foster a culture of accountability and transparency for a small group of powerful officials who have long avoided both. It would also send the message that the justices take their obligations to the American people seriously and would help to re-establish the public trust that they rely on for their authority. For this reason, the justices should not simply tolerate being held to a strong code of ethics. They should welcome it.
Source photographs by Hisham Ibrahim and Luis Diaz Devesa, via Getty Images.
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