Is the Supreme Court Going to Get a Code of Ethics?

December 7, 2022

Code of ethics sign Photo by Nathan Dumlao on Unsplash

Following alleged ethics violations at the Supreme Court that lawmakers do not feel have been adequately addressed, the House Judiciary Committee is set to hold a hearing on Thursday into a reported lobbying campaign by religious conservatives to influence the Court.

It comes after a New York Times report last month revealing the Court’s decision on a 2014 case, Burwell v Hobby Lobby, was leaked ahead of its ruling being made public.

The Times had published a letter from a conservative religious leader, Rev. Rob Schenck, alerting Chief Justice John Roberts to the alleged leak. Schenck wrote that he thought the information might be relevant to the investigation into the leaked opinion this past spring on overturning Roe v Wade.

According to the Times, Schenck had learned of the Hobby Lobby decision during a dinner party hosted by Justice Samuel Alito. He is the same Justice who wrote the opinion in Dobbs v Jackson overturning Roe, which was also leaked months before its final ruling.

Reacting to the Times article, Sen. Sheldon Whitehouse (D-RI) and Rep. Hank Johnson (D-GA) asked the Court for an explanation. The Court’s legal counsel replied simply that Alito did not breach ethics in the Hobby Lobby case—which the lawmakers found to be an inadequate response.

Hence, Thursday’s hearing. “If the Court…is not willing to undertake fact-finding inquiries into possible ethics violations, that leaves Congress as the only forum,” the lawmakers had written.

“The latest revelations about this behind-the-scenes covert operation to influence Supreme Court Justices is kind of a new dimension to an old problem,” Sarah Turberville, Director of The Constitution Project at Project on Government Oversight (POGO) tells Political IQ. She is submitting written testimony to the Judiciary Committee’s hearing Thursday. “There are virtually no ethical guard rails around the conduct of Supreme Court Justices, and what does exist is pretty subjective in nature and is self-enforcing.”

She says that in her testimony, POGO recommends creating a code of ethics that’s unique to the Supreme Court—which is virtually the only court in the country that’s not beholden to any such set of protocols.

“The Chief Justice continues to state he has confidence and faith in his fellow members of the Court to conduct themselves ethically and to consult the code of conduct for U.S. court judges that applies to the lower courts,” says Turberville, “But it’s just apparent to everyone except the nine people on the Court that that is wholly insufficient.”

Code of Ethics Could Start with Recusal

Turberville says her testimony offers recommendations on where to start, which in her opinion is with “recusal of decision-making.”

This issue has come to the forefront in the past few years thanks to Justice Clarence Thomas and his conservative activist wife, Ginni, who’s been questioned by the House Select Committee investigating the January 6 insurrection for her involvement in the plot to overturn the 2020 Presidential election.

Justice Thomas had not earlier recused himself when former President Trump asked the Court to block the January 6 Committee from gaining access to his White House records. When the Court declined to block release of the documents, Thomas was the only Justice who dissented, siding with Trump.

“Presently there’s the 28 USC 455 that governs disqualification, and it has this kind of broad catch-all concerning conduct that would have the appearance of impartiality,” Turberville notes, “but there needs to be more specificity on what that means.”

Issues Expand Beyond Supreme Court Justices

Turberville goes on to say that it’s not just the conduct of the Justices that’s problematic. There are “gaping holes” in the ethics framework surrounding third parties, as well.

Sen. Whitehouse elaborated in a December 1 interview about how the Justices are not obligated to disclose expensive gifts or meals or vacations, or to specify items of personal hospitality and their financial statements.

“The trick that they pull at the Supreme Court is to say that if they got a personal invitation, then it’s personal hospitality,” he said.

He pointed to the late Justice Antonin Scalia having taken “80 hunting trips paid for almost entirely by others.” But Scalia didn’t disclose any of them; instead he had a resort owner “invite” him, making it “personal hospitality, as if he’s visiting his children or brother-in-law.”

But also, notes Turberville, “Who are the donors to the organizations that are spending millions of dollars on traditional selection? Are those the same people that end up creating out of whole cloth a new organization that appears before the Court, either as a party or as an amicus?”

“There’s just a huge degree of opacity that exists,” she adds. “And that is not the fault of any Supreme Court Justice. That’s something that Congress needs to tackle with respect to reining in the disclosure rules concerning who are these organizations and who are their donors.”

Do Supreme Court Justices Need an Inspector General?

As for the leaks of Hobby Lobby and Dobbs, Turberville says they’re symptomatic of a larger issue: the Justices’ sense of “exceptionalism.”

“Every other body or federal agency is ultimately going to be subject to review by an inspector general, but there’s no inspector general for the federal judiciary,” she explains.

If the Court were overseen by an IG, she believes those leaks likely would not have happened. “Because again, you’ve got the problem of impunity at the Court. The people who hold their jobs for life have virtually no ethical guard rails on their conduct.” With an IG, “You’d have an entity in place that has the tools and the resources and the know-how to investigate waste, fraud and abuse.”

How Much Authority Does Congress Have Over the Supreme Court?

While they’re independent branches of government, the Constitution does give Congress quite a bit of authority over the Supreme Court.

“Congress sets the term of the Court,” notes Turberville. “It sets the number of Justices that sit on the Court. It has set out a disqualification statute. It has subjected the courts, including the Supreme Court, to the Ethics in Government Act of 1978.”

The Ethics in Government Act mandates that public officials and their immediate families publicly disclose financial records and employment histories. It also sets restrictions on lobbying efforts for a period of time after an official leaves public office.

Supreme Court’s Approval Rating Remains Under Water

A November poll from Marquette University has found that 44% of adults approve of the job the Justices are doing while 56% disapprove.

It follows Gallup research this past summer that found public confidence in the Court was at a 50-year low.

And more than once in the past few years Chief Justice Roberts has found himself in a defensive position, arguing on behalf of the Court’s “legitimacy.”

So, is the time ripe for a reckoning at the Court?

The effort to do anything is about to hit a giant roadblock on January 3 when Republicans take Majority control of the House. It’s unlikely they’d want to keep a spotlight on the Court and its 6-3 conservative supermajority of Justices. Indeed, the Marquette poll found 70% of Republicans approved of the Court in its current form.

The Democratic-controlled Senate Judiciary Committee could potentially take over the House’s work. It’s Chaired by Sen. Richard Durbin (D-IL).

“Chairman Durbin has already announced that he’s going to look into this at the full committee level. I’m going to defer to him until he decides what he cares to do,” Whitehouse said last week.

“We’re at the point now where lifetime tenure isn’t something that so much protects the independence of the Court but is more of a kind of license to act with impunity. And I don’t think the Justices can see this clearly at all,” Turberville cautions.

And while the impulse among members of Congress may be—correctly—to not want to interfere in the independence of the Court’s decision-making concerning cases brought before it, she adds, “I say this in my testimony: from our view, it’s time for Congress to help a Court that’s not willing to help itself.”

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