On Monday, July 29, 2024, nonpartisan group Fix the Court published an article analyzing the origins of life tenure for Supreme Court justices and the lack of enforceable ethics rules.
The article comes after President Biden recently proposed reforms that would end the practice of life tenure for Supreme Court justices and subject the justices to an ethical code that includes consequences for violations.
Fix the Court sought to provide context around the current system. On the issue of lifetime appointments, the article traced the concept back to 18th century England, when Parliament passed a law in 1701 establishing judges would hold their positions during “good behavior.” Kings had attempted to influence colonial judges in America by threatening to remove them, which influenced the language in the Declaration of Independence.
Early American state constitutions and the U.S. Constitution eventually embraced the “good behavior” standard. However, Fix the Court argued this standard may have made more sense in pre-colonial times but is outdated now that the U.S. is a well-established democracy rather than a monarchy. No other democracy gives judges as much lifelong power as the U.S. system allows Supreme Court justices to wield, sometimes for 30 years or more.
Regarding ethics rules, the article noted the impetus for reform came after scandals like Justice Fortas resigning in 1969 due to accusations of taking improper payments. The Supreme Court started implementing its own financial disclosure policies before Congress. However, the justices successfully lobbied to be exempt from national conduct codes adopted for other judges in the 1970s.
As the Watergate scandal sparked broader accountability reforms, proposals emerged for a Judicial Tenure Act that would have allowed complaints against justices and potential discipline. However, the Supreme Court opposed this. By 1980, legislation mirroring a localized 9th Circuit system was passed instead of the more comprehensive original plans, exempting the Supreme Court.
In reviewing the history, Fix the Court argues there is no legitimate legal reason the Supreme Court cannot be subject to an independent ethics enforcement system like other judges. The article aims to provide context for ongoing discussions around potential reforms to Supreme Court rules and norms.
Source: Fix the Court
