Tipping Justice’s Scales
The Supreme Court Has No Code of Conduct. Let’s Give Them One.
Last term, it affirmed the universal right of marriage. This term, it could restrict access to birth control. It’s no understatement to say that the Supreme Court’s decisions can have a dramatic and lasting impact on our daily lives.
Yet, as the Court begins its fall term this week, many Americans would be surprised to learn this:
The nine justices on the Supreme Court are the only federal judges in the nation not bound by a code of ethical conduct.
That means, for example, there are no rules requiring justices to recuse themselves because of a conflict of interest, despite the fact that they may be hearing important cases that have impact on the law far beyond their tenure on the Court. While we shouldn’t presume that judges would be incapable of making the right call when it comes to a conflict of interest, we should not be naive to the possibility. That is why we should finally place Supreme Court justices under a code of ethical conduct, just as is required for all other federal judges.
I have introduced the Supreme Court Ethics Act to do just that. This legislation would require the Supreme Court to adopt an ethics code modeled on the Code of Conduct that binds the rest of the federal judiciary, even including retired Justices O’Connor and Souter who continue to hear cases in federal appeals courts. Such a code will provide an important safeguard for public confidence in future rulings and in the Supreme Court itself.
This code would disallow participation in political and fundraising activities such as the invitation-only political retreat put on by the Koch Brothers that was attended by Justices Scalia and Thomas, where the explicit goal was to “change the balance of power in Congress,” or the $25,000-a-plate fundraising dinner for the conservative American Spectator magazine attended by Justice Alito.
The federal judiciary’s Code of Conduct also contains rules regarding potential financial or familial conflicts of interest for members of the bench. Yet no such standards apply to the Supreme Court. This is despite a recent report that Chief Justice Roberts and Justices Breyer and Alito held stock in companies that filed a number of friend-of-the-court briefs over the past five years, and that the justices sided with those companies in two-thirds of the cases. Potential financial conflicts of interest also didn’t stop Justice Thomas from considering the constitutionality of the nation’s health care law. As an employee of the conservative Heritage Foundation, Justice Thomas’s wife earned $686,000 in unreported income over a five-year period, during which time she actively lobbied against health care reform even as cases on the matter worked their way to her husband on the Supreme Court. Adherence to a code of ethics would have prevailed upon Justice Thomas to recuse himself.
These examples raise an appearance of impropriety that undermines the credibility of our judicial system and, in turn, our democracy.
Polls show that the American people have started to notice, as our collective opinion of the Court is just shy of an all-time low.
My legislation to establish a code of ethical conduct already has the support of more than 100 of my colleagues in the House of Representatives as well as more than 200 law professors. There is popular support for this idea, too, as more than 150,000 Americans have signed a petition calling on Congress to pass the bill without delay.
The Supreme Court Ethics Act would help protect against bias in Court rulings and uphold the integrity of our constitutional process. It would also serve the urgent purpose of repairing the public’s trust in one of our most important institutions.
