A group of lawmakers earlier this month introduced legislation that would hold U.S. Supreme Court justices accountable to the same ethics code as other federal court judges.
Senators Richard Blumenthal (D-Conn.), Christopher Murphy (D-Conn.) and Sheldon Whitehouse (D-R.I.) joined Representative Louise Slaughter (D-N.Y.) and 15 House members in introducing the Supreme Court Ethics Act of 2013. To the surprise of many, Supreme Court justices are not bound by any code of conduct.
That situation is intolerable in a society grounded in the rule of law as enforced by independent and unbiased judges who must operate with the confidence of the people. By calling on the Supreme Court to adopt a simple code of conduct, the bill offers the court an easy path to buttress its own legitimacy. The Code of Conduct for all other U.S. judges ensures that lower federal judges will uphold the integrity and independence of the judiciary, both in fact and appearance. It ensures that they will not engage in partisan activity, and will not speak or appear as honored guests at fundraisers or rule on matters in which they or a family member have financial or other interests. Proponents of the bill have said that some appearances of Supreme Court justices at fundraisers, attendance at partisan gatherings, failure to report spousal income earned from political activities and refusal to recuse themselves from high-profile cases would not have been tolerated of any other federal judge. Critics of their conduct have said that Justice Antonin Scalia and Justice Clarence Thomas have attended partisan gatherings to plot electoral strategy. Justice Samuel Alito has participated in fundraising for The American Spectator. Thomas' wife, whose income he failed to disclose for six years, has been involved in groups promoting positions on issues that reached the court, yet Thomas has seen fit to rule on those issues. Criticism also arose regarding Justice Elena Kagan's decision to rule on the constitutionality of the Affordable Care Act, despite her service in the U.S. Department of Justice while the issue was in the lower courts. In each of these instances, the public and the bar would have benefited from public assurance that the justices had examined their conduct and a transparent explanation as to how they found it consistent with a published code.
Faced with these concerns, Chief Justice John Roberts responded defensively and dismissively in his 2011 end-of-year report to calls for the court to adopt an ethics code. He stated that justices consult the code, among other sources, but rejected the notion that justices needed to be bound by it. Roberts' response belies the general view that he cares deeply about the image and legitimacy of the court he leads. A recent Gallup poll shows that for the first time more people have an unfavorable than a favorable view of the court. As it tackles a steady diet of controversial issues with substantial political ramifications, it needs to minimize concern about its lack of independence and bias. Adopting a code of conduct would reassure the public and strengthen the court's legitimacy.
The Supreme Court Ethics Act is very modest. It instructs the court to adopt a code of conduct that incorporates the five basic provisions that govern other federal judges, but it authorizes the court to make whatever changes it considers "appropriate." It does not prescribe an enforcement mechanism or specify punishments. Indeed, the bill fails to require transparency, which is the principal source of the court's legitimacy. We entrust the court with enormous power because it writes reasoned, public opinions that explain its actions. Decisions regarding ethics should be subject to the same transparency. Similarly, the bill does not address the process for recusal. Justices now decide on their own whether they have a conflict of interest in a case.
Opponents of the bill argue that Congress lacks authority to tell the court to adopt a code of conduct. Congress, however, has long involved itself in the administration of the court, including how much they get paid and what finances they must disclose, as well as requiring that they recuse themselves under specified circumstances.
Apparently signaling his willingness to engage in a separation of powers showdown, Roberts, in his 2011 report, noted that the court had never addressed the constitutionality of the recusal statute or the financial disclosure requirement. Surely, however, Congress has authority to protect the integrity of the court by ensuring that the public knows if justices are accepting money and gifts from entities with business before the court. And surely it can prohibit justices from deciding cases in which they have large personal interests. The court's only advantage in a battle over these requirements would be its ability to have the last word, but that should not be enough. Regardless, the Supreme Court Ethics Act is even more respectful of the separation of powers, since it allows the court to shape its own ethics code.
If the court resists adopting a code, proponents of the legislation should push ahead. While the bill does not yet have bipartisan support, that is likely to change as discontent with the court grows. The bill does not pick political favorites. All justices will have to comply with an ethics code. The big beneficiaries will be the court and the public — not a political party.
William Yeomans is a professor at American University Washington College of Law and served as Senator Edward Kennedy’s chief counsel on the Senate Judiciary Committee.