On Thursday, May 4, 2023, the American Prospect reported that the justices of the US Supreme Court provided unsatisfactory or evasive responses that did not effectively address the ethical issues raised on the issue of Supreme Court Ethics Reform.

The U.S. Senate Judiciary Committee held a hearing on “Supreme Court Ethics Reform” on May 2, 2023, which quickly became divided based on political party lines. Democrats strongly contended that the diminishing public trust in the Court could be attributed, in part, to the justices’ refusal to adopt written ethics rules. They specifically mentioned the Code of Conduct for United States Judges followed by the lower federal courts and similar codes in each state. In contrast, Republicans expressed their anger and argued that the hearing was yet another instance of a long-standing campaign to discredit conservative justices. Both sides presented witnesses to support their arguments, but it became evident that the most influential witnesses were not physically present in the room.

The committee received two letters that presented the issues with the same clarity as the testifying witnesses, devoid of any partisan bias. While the current justices argued in favor of maintaining the existing state of affairs, a well-known former judge emphasized the importance of establishing clear ethical guidelines.

Senate Judiciary Committee Chairman Dick Durbin received a letter from Chief Justice John Roberts declining the Committee’s invitation to testify at the ethics hearing citing concerns about preserving judicial independence and the separation of powers as reasons for declining the invitation. In his letter, Roberts included a Statement of Ethics Principles and Practices, signed by all nine justices, including conservatives and liberals. This statement provides an explanation of the justices’ current approach to addressing specific ethical issues that occur repeatedly.

Former federal appeals judge J. Michael Luttig, a respected conservative, submitted a letter to the committee on the eve of the hearing, emphasizing the Supreme Court’s responsibility to assure the public of the justices’ ethical conduct. Luttig argued that while Congress has the constitutional power to establish ethical standards for the Court, it is preferable for the Court itself to self-examine and uphold its integrity. Recent incidents involving justices’ non-judicial activities, such as the relationships between Justice Thomas and Harlan Crow, and Justice Gorsuch’s property purchase, have raised doubts about the Court’s conduct.

In contrast, Chief Justice Roberts and his colleagues displayed a dismissive attitude toward the growing concerns expressed by the public. Their response merely indicated their intention to reiterate established ethical principles and correct common misunderstandings. Essentially, they implied that the current controversies are based on misconceptions, asserting that the Court’s past practices have been adequate and there is no need for further action.

Furthermore, both Roberts’ cover letter and the Court’s statement were occasionally misleading. For instance, Roberts justified his decision not to testify by citing the precedent set by previous chief justices, without addressing Senator Durbin’s suggestion to have one of the associate justices testify instead. Additionally, he failed to acknowledge that chief justices have made 175 appearances before congressional committees since 1960, downplaying the significance of such engagements.

The justices maintain the criticized practice of individual justices deciding on their own recusal issues, rather than the Court making such determinations. This means that each justice becomes the sole arbiter of any potential biases they may have. However, the justices assert that their recusal decisions align with the guidelines outlined in the Judicial Conference’s Code of Conduct.

To provide transparency, a justice may offer a brief explanation for their recusal decision. For example, they may state, “‘Justice X did not participate in the consideration or decision of this matter due to a financial interest. Refer to Code of Conduct 3C(1)(c)’” or “‘Justice Y did not participate in the consideration or decision of this petition due to prior government employment. Refer to Code of Conduct, Canon 3C(1)(e).'”

In fact, no such explanations have ever been given. A thorough search by a Northwestern reference librarian found not a single instance in which a Supreme Court justice provided a recusal explanation in reference to the Code of Conduct.

Even if the justices were obliquely signaling that they “may” provide such code-based explanations in the future, it was without acknowledging any need for a change. Moreover, just six days after issuing the Statement of Principles, and one day before the Senate hearing, the Court announced Justice Ketanji Brown Jackson’s recusal in a major case with no parenthetical explanation, much less a citation to the Code of Conduct.

The Supreme Court finds itself in an unfavorable position, and this predicament cannot be attributed to any smear campaign. Senator Durbin emphasized during the hearing that he had been advocating for a code of conduct for the Supreme Court since 2014, while the issue was initially raised in 2005. Notably, the U.S. Judicial Conference, which governs the lower federal courts, adopted the Code of Conduct for United States Judges back in 1973. The Supreme Court remains the only entity that has not embraced such a code and repeated affirmations and restatements of principles will not improve its resistant stance.

A few Republican senators, including Thom Tillis of North Carolina and Charles Grassley of Iowa, briefly hinted at the possibility of congressional oversight of the Court in the future. Their openness to this idea may stem from accepting Judge Luttig’s caution that the ethical standards of the Supreme Court should not be treated as a partisan matter. Judge Luttig stressed that the Court has an ongoing obligation to self-assess, and every justice bears the responsibility of ensuring that their ethical conduct remains beyond reproach, eliminating any need for questions or doubts to arise.

 

Source: American Prospect