Bipartisan Code of Ethics Coming for Supreme Court: Judiciary Chair

May 1, 2023

Senate Judiciary Chair Dick Durbin (D-IL) said Monday that his committee was “going to produce a bipartisan code of ethics” for the Supreme Court.

“There are several on the table,” Durbin told MSNBC, mentioning a proposal introduced last week by Sens. Angus King (I-ME) and Lisa Murkowski, (R-AK). 

Under their proposed legislation the Supreme Court would have to establish a code of conduct with rules published on its website, designate an official to handle violations, and publish an annual report on any complaints and actions taken.

Durbin further mentioned a proposal by Sen. Chris Murphy (D-CT), who every year over the past decade has introduced the Supreme Court Ethics Act into the Senate. Under that bill, Congress would not be tasked with writing a judicial ethics code but would put the responsibility on the Judicial Conference to create one that governs all federal judges, including all nine Supreme Court Justices. 

“But the leading proposal is from Sheldon Whitehouse who chairs our core subcommittee,” Durbin said on Monday.

The Democratic Senator from Rhode Island, along with 14 Democratic and Democratic-leaning Independent Senators, has called for “language mandating enforceable, transparent ethics rules for justices of the Supreme Court in the FY2024 Financial Services and General Government Appropriations bill.”

Durbin is planning to hold a hearing on the Supreme Court’s ethics rules on Tuesday. He invited Chief Justice John Roberts to testify, but this past Tuesday Roberts said he would “respectfully decline” that invitation, instead offering a statement signed by all nine Justices in which they “reaffirm and restate foundational ethics principles and practices” to which they abide.

The Judiciary Chair was unsatisfied with the Chief Justice’s response. “Ninety-two Justices of the Supreme Court had testified before Congressional committees since 1960. It’s not unprecedented,” Durbin said on Monday. “But he declined. I’m disappointed that he did, but he declined.”

Three days after Roberts declined, reporting revealed that a whistleblower from his wife’s law firm had signed an affidavit in December asserting that Jane Roberts has made millions in commissions from elite law firms, and Roberts did not recuse when at least one of those firms had a case before the Supreme Court.

At that point, Durbin had already called for Tuesday’s hearing following revelations that Justices Clarence Thomas and Neil Gorsuch had failed to publicly disclose—either entirely or in part—high-priced gifts and business transactions. 

The U.S. Supreme Court is virtually the only court in the U.S. without a formal code of ethics.

Public opinion of the Supreme Court has plunged to historic lows in the past year, with just 25% of those Americans  surveyed by Gallup saying they had confidence in the institution—down from 36% a year ago and down five percentage points from the previous low recorded in 2014.

Chief Justice Roberts is not unaware of the Court’s approval ratings, having said in September, “If the Court doesn’t retain its legitimate function of interpreting the Constitution, I’m not sure who would take up that mantle. You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide about what the appropriate decision is.”

Durbin said Monday that the Court must recover its legitimacy with the American public. “That’s why I appealed to Chief Justice Roberts. This is his court he’ll be identified with it in history,” he stated, adding, “I think we can come up with a bipartisan measure and move forward and say to the Supreme Court, the highest court in the land should not have the lowest standard of ethics in the federal government.”

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