Column: The Supreme Court rejects ethics oversight. Can anything change that?
It’s hardly a secret that the public standing of the Supreme Court is in a bad way.
The reasons go beyond a string of recent rulings that run counter to the weight of public opinion — eviscerating abortion rights, shrinking voting rights, undermining gun safety regulations among them.
But the court now has another problem, namely, increasing doubts about the justices’ ethical standards.
A formal code of conduct would provide clearly stated, visible rules and procedures to which the justices are expressly committed.
— Jeremy Fogel, UC Berkeley Law School
The doubts arise from publicity about a potentially improper financial relationship between Justice Clarence Thomas and Harlan Crow, a wealthy real estate developer; questions about whether Thomas and Chief Justice John G. Roberts Jr. should have recused themselves because of the appearance (at least) of conflicts of interest due to their wives’ activities; and questions about whether Thomas and Justice Neil M. Gorsuch made adequate disclosures about their financial transactions.
Beyond the specifics, the allegations have focused attention on an inconvenient fact about the ethical atmosphere at the Supreme Court: Uniquely among federal judges, the justices of the Supreme Court aren’t subject to an explicit code of conduct.
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“The highest court in the land should not have the lowest ethical standards,” Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.) stated in opening a hearing on the issue Tuesday. “That reality is driving a crisis in public confidence in the Supreme Court.”
The debate about imposing an explicit code of conduct on the Supreme Court has foundered on a constitutional shoal — specifically, whether Congress could promulgate a code without breaking the Constitution’s separation of powers doctrine, which assigns specific duties and limitation on all three branches of government.
“Obviously, the ideal would be for the court to do this for itself,” Erwin Chemerinsky, dean of the UC Berkeley Law School and a constitutional scholar, told me. If it doesn’t, he says, Congress must step in. As for whether that would breach the separation of powers, he says, “It never has been thought that Congress imposing an ethical code on the executive branch violates separation of powers. I do not see why it is any different for the judicial branch.”
For Congress to mandate the outcome of a specific case would certainly cross a constitutional line, legal experts agree. But the Constitution does vest Congress with significant authority over the Supreme Court, including setting the size of the court, its budget and justices’ pay. To a certain extent, Congress can even remove certain categories of legal cases from the court’s appellate jurisdiction.
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The collapse in the court’s public standing is indisputable. “Americans’ ratings of the Supreme Court are now as negative as — and more politically polarized than — at any point in more than three decades of polling on the nation’s highest court,” the Pew Research Center reported in September.
As recently as August 2020, the Pew researchers noted, 70% of Americans held favorable views of the court. In its most recent polling, Pew found that only 48% of the public still saw the court favorably.
The erosion of the court’s public esteem is not due entirely to the tenor of its recent decisions, UC Berkeley law professor Jeremy Fogel, a former federal and California state judge and currently executive director of the Berkeley Judicial Institute, told the committee.
Among other important factors, Fogel mentioned “a persistently hyperpartisan political environment ... and the pervasiveness of social media as a source of misinformation and disinformation about the law, the judicial process and the judges and justices to whom that process is entrusted.”
That environment, he said, makes it more imperative that the ethical responsibilities of Supreme Court justices be formally defined: “Too many Americans already think that the justices decide cases based on their political preferences and alliances rather than the law; lack of clarity about the justices’ ethical obligations only feeds that perception.”
Republicans on the Judiciary Committee tried to paint concerns about the justices’ ethical responsibilities as pure partisanship — “a concentrated effort by the left to delegitimize the court and to cherry-pick examples to make a point,” huffed Sen. Lindsey Graham (R-S.C.), the committee’s ranking Republican.
The GOP’s lead witness, former Atty. Gen. Michael Mukasey, dismissed the most oft-cited alleged ethical breaches as the product of innocent paperwork errors or mere bagatelles. “The public is being asked to hallucinate misconduct so as to undermine the authority of justices who issue rulings with which these critics disagree,” he said.
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But that won’t do. The questions apply to Thomas’ acceptance of and failure to disclose lavish benefits from a rich friend who apparently had business before the court on at least one occasion; about his participating on cases related to the 2020 election results while his wife was actively involved with White House efforts to challenge the results; and about Chief Justice Roberts’ sitting on at least one case in which one of his wife’s legal clients may have represented litigants.
The issues aren’t imaginary or trivial. At best, they point to the justices’ apparent failure to comply with ethics rules that they themselves acknowledge apply to them. In a statement provided to Durbin’s committee on April 25, the nine justices said that they “consult a wide variety of authorities to address specific ethical issues,” including judicial opinions, scholarly articles and historical practices.
To the extent they observe the code of conduct for federal judges issued by the Judicial Conference of the United States, however, the justices indicated that they do so voluntarily.
That’s also the case with the Ethics in Government Act of 1978, which requires all “judicial officers” of the U.S. to file financial disclosure reports listing outside income, gifts and investments, among other mandates.
Whether the Supreme Court is subject to the act hasn’t been tested in court — after all, the question might be aired before the court itself — but the justices’ statement simply said that they “comply with the substance of those regulations,” as they said they also do with other statutory rules governing gifts to federal employees.
Whether Thomas and Gorsuch fully complied with the Ethics in Government Act rules in connection with their financial transactions, as it happens, is subject to question. The law’s penalties for noncompliance are generally modest; cases of willful violation can be referred to the Department of Justice. The department’s authority typically extends to imposing a civil penalty, though criminal prosecution is technically possible in especially egregious cases.
Nor have the issues been raised exclusively by “the left,” as Graham and his fellow Republicans asserted. A ringing critique of the court’s casual approach to its ethical obligations came to the committee from former federal appeals Judge J. Michael Luttig, who helped prepare Thomas for his confirmation hearings in 1991.
“To whatever extent the court does not subject itself to the highest possible professional and ethical standards — or only grudgingly does so,” Luttig observed in a written statement to the committee, “to an even greater extent does it depreciate ... its power to preserve, protect, and defend the Constitution.”
In any event, every currently sitting justice has been criticized for alleged ethical lapses by the nonpartisan watchdog Fix the Court, typically for failing to recuse him- or herself on cases in which a conflict of interest or the appearance of a conflict existed.
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Voluntary compliance with federal ethics and disclosure laws isn’t enough to quell suspicions about the court’s integrity. “A formal code of conduct would provide clearly stated, visible rules and procedures to which the justices are expressly committed,” Fogel testified. That points to what may be the thorniest issue related to Supreme Court ethics: Who would enforce the code, and how?
Fogel suggested that a confidential panel comprising retired appellate judges of “unquestioned integrity” could provide justices with “confidential advice as to whether an act, omission or relationship raises an issue under the code.”
That points to the question of what can be done about a Supreme Court justice who flatly refuses to abide by the rules?
The only disciplinary process for the court contemplated by the Constitution is impeachment by the House and removal from office by a two-thirds vote of the Senate. Otherwise, justices remain in office subject to the nebulous standard of “good behavior.”
Impeaching and removing a Supreme Court justice for a financial misdeed or even flouting an order under the Ethics in Government Act might appear to be overkill. “To come up with some process for discipline short of impeachment is going to be particularly challenging,” Fogel told me, “and I’m not sure it’s possible.”
Federal law requires judges to disqualify, or recuse, themselves in cases in which their “impartiality might reasonably be questioned.” The decision is generally left up to the judge, with oversight by the Judicial Conference, but there’s no method of applying that oversight to the Supreme Court. Recusal by a Supreme Court justice, moreover, raises a unique issue — a lower court judge can be replaced by a colleague, but not a Supreme Court justice. That raises the prospect that an untimely recusal might produce an evenly divided high court, resulting in an unjust outcome.
The only real option, and perhaps the best option, is for the Supreme Court to proactively subject its nonjudicial activities — financial, personal and family relationships — to public scrutiny and allow the force of moral suasion and the concept of shame to play out.
Up to now, the justices have fostered the impression that they believe conflict of interest rules apply to everyone in the country except themselves.
The harvest has been increasing public doubt about whether some of their decisions reflect sound principles of law or serve the concealed interests of friends, family members or gift-givers. They can ignore the shadows looming over their credibility for a time, but why would they want to?
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