WASHINGTON (AP) — When allegations of ethical lapses on the Supreme Court are made, the same question is raised: Why, unlike federal judges in lower courts, do the nine justices lack a binding code of conduct?
It arose amid the uproar over Justice Clarence Thomas’ wife, Virginia “Ginni” Thomas’ conservative political activism, including her support for former President Donald Trump’s efforts to overturn the 2020 election results.
When conservative Justice Antonin Scalia went duck hunting with then-Vice President Dick Cheney while Cheney was involved in a case before the court, it came up.
It came up during the 2016 election when liberal Justice Ruth Bader Ginsburg was harshly critical of then-Republican presidential candidate Trump.
And it came up again last week when questions were raised about Chief Justice John Roberts’ wife, Jane Roberts, who works as a legal recruiter for law firms with cases before the court.
Until now, the justices have stood firm, despite the fact that judges on the district and appeals courts are bound by a judicial ethics code. It requires judges to “avoid impropriety and the appearance of impropriety in all activities,” among other things. Judges who violate the code can be investigated and reprimanded through a separate complaint process.
The justices claim to follow the spirit of the 1973 code, but they have never formally adopted their own. There is also no procedure in place to investigate complaints short of the drastic step of impeachment.
Congress has repeatedly pressed the justices to adopt a code, with Sen. Chris Murphy, D-Conn., set to reintroduce legislation requiring the justices to do so on Thursday. Similar efforts have failed in recent years.
“It’s a straightforward, bipartisan solution to increase transparency, enforce accountability, and begin to restore public trust in the court,” Murphy said in a statement.
The bill, like previous versions, would charge the Judicial Conference of the United States, the policymaking body for federal courts, with issuing a code of conduct for Supreme Court justices within a year of enactment. It also includes a new provision authorising an ethics investigations lawyer with the authority to enforce the code.
Murphy has more than 20 Senate co-sponsors, and Rep. Hank Johnson, D-Ga., is set to introduce companion legislation in the House.
According to a Democratic Senate aide, the Senate Judiciary Committee will hold a hearing on judicial ethics.
The American Bar Association, a national group representing lawyers, also called for the justices to adopt an ethics code earlier this week.
In his 2011 end-of-year report on the judiciary, Roberts addressed the court’s inaction on the issue, calling it a “misconception” that the Supreme Court has lower ethical standards than lower courts.
“In fact, all members of the court consult the code of conduct when assessing their ethical obligations,” he said.
Any congressional intervention could raise constitutional concerns because lawmakers would be meddling in the internal affairs of a separate branch of government. However, the Supreme Court already adheres to recusal and financial disclosure rules enacted by Congress. According to Roberts, the court “has never addressed whether Congress may impose those requirements.”
Patricia McCabe, a spokeswoman for the Supreme Court, declined to comment.
Judicial reform used to be a bipartisan issue, but with increased scrutiny — particularly on the left — of conservative justices, including not only Thomas but also Justice Brett Kavanaugh following his contentious Senate confirmation, Republicans have become less likely to support legislative efforts. This has also coincided with the court’s shift to the right, thanks to Trump’s three appointments, which resulted in a 6-3 conservative majority.
Following calls last year for Thomas to recuse himself from Trump-related cases due to his wife’s involvement in efforts to overturn the 2020 election, Republican Senate Leader Mitch McConnell conflated various issues, characterising Democratic calls for reform as “part of a years-long quest to delegitimize the court.” He dismissed Democratic concerns as “false allegations of fake ethical problems or partiality.”
Gabe Roth, executive director of Fix the Court, a nonpartisan court reform organisation, said he is attempting to persuade Republicans that ethical rules do not only apply to conservatives.
“Unfortunately, that’s how it’s covered in conservative media,” he said.
If the Supreme Court voluntarily adopted a code of conduct, the first of what Roth hopes will be a series of reforms, “it would be an easy win,” he added.
Ethics experts have long urged the justices to go this route.
Failure to do so “gives the impression that they have something to hide,” according to Arthur Hellman, a law professor at the University of Pittsburgh.
However, Charles Geyh, a professor at Indiana University’s Maurer School of Law, pointed out that the court typically resents Congress ordering it around.
“In a less tense political environment, this standoff could and should be resolved by congressional leaders quietly conferring with members of the court and agreeing to step down if the court undertakes the task of adopting a code,” he said.