Francis Chung/POLITICO via AP Images
Sen. Thom Tillis (R-NC) speaks during a Senate Judiciary Committee hearing on Supreme Court ethics, May 2, 2023, on Capitol Hill.
Tuesday’s U.S. Senate Judiciary Committee hearing on “Supreme Court Ethics Reform” quickly broke down along partisan lines. Democrats pointedly argued that declining public confidence in the Court was in part due to the justices’ refusal to adopt written ethics rules, such as the lower federal courts’ Code of Conduct for United States Judges and comparable codes in every state. Republicans angrily countered that the hearing was just one more episode in a decades-long smear of conservative justices. Each side produced witnesses to back up its position, but the most important witnesses, it turns out, were not in the room.
Two letters to the committee set out the issues as sharply as the testifying witnesses, without an overlay of partisanship. The sitting justices made the case for the status quo, while a prominent former judge focused on the need for formal ethical transparency.
Chief Justice John Roberts had politely declined an invitation from the committee chair, Sen. Richard Durbin (D-IL), to appear in person or designate another justice to testify. Along with his own letter, invoking the separation of powers and judicial independence, Roberts attached a Statement of Ethics Principles and Practices, signed by all nine justices, conservatives and liberals alike, explaining how they currently address certain “recurring” ethics issues in the absence of a formal code.
On the eve of the hearing, former federal appeals judge J. Michael Luttig, a widely respected conservative, provided his own letter to the committee, explaining the Supreme Court’s obligation to assure the public, “in every way both necessary and possible,” that there is no reason “to question the ethical conduct” of the justices. “There should never come a day,” Luttig added, when Congress “is obligated to enact laws prescribing the ethical standards” applicable to the Court. But Congress “indisputably has the power under the Constitution to do so,” he concluded.
Judge Luttig’s case for proactive change won the argument. He noted that respect for the Court’s judgments is earned “by virtue of the manner in which it comports itself publicly and privately,” especially in its “non-judicial conduct and activities.” That conduct has been thrown into question in recent weeks, between the relationship between Justice Clarence Thomas and billionaire Harlan Crow, and the purchase of a property of Justice Neil Gorsuch by the head of major law firm Greenberg Traurig, which was not fully disclosed.
Given all this, Luttig wrote, the Court needs to “reexamine itself as faith, respect, and public confidence … ebbs and flows,” whether or not “the ebbs and the flows are believed to be justified by the Court.”
In contrast, Roberts and his colleagues were all but dismissive of increasing public concerns, allowing only that they would “reaffirm and restate foundational ethics principles,” while seeking “to dispel some common misconceptions.” In other words, the current controversies are misconceived, the justices’ past practices have been quite sufficient, and there is no reason for the Court to do anything more.
Worse, both Roberts’s cover letter and the full Court’s statement were at times rather misleading. Roberts, for example, explained that his decision against testifying was in keeping with the practice of past chief justices, without even addressing Durbin’s invitation for him to designate one of the associate justices to appear in his stead. Nor did he acknowledge that there have been 175 such appearances before congressional committees since 1960.
Regarding disqualification, the justices state that they will maintain the much-criticized practice in which “individual Justices, rather than the Court, decide recusal issues,” thus making each justice the sole determiner of their own possible or apparent biases. Reassuringly, the justices seem to say that their recusal decisions nonetheless follow the Judicial Conference’s Code of Conduct:
A justice may provide a summary explanation of a recusal decision, e.g., ‘Justice X took no part in the consideration or decision of this position. See Code of Conduct 3C(1)(c) (financial interest)’ or ‘Justice Y took no part in the consideration or decision of this petition. See Code of Conduct, Canon 3C(1)(e ) (prior government employment).’
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 has put itself in an untenable position, and it isn’t the result of any smear campaign. As Durbin pointed out at the hearing, he began raising the need for a Supreme Court code of conduct in 2014. I first raised it in 2005. And of course, the U.S. Judicial Conference, with jurisdiction over the lower federal courts, adopted the Code of Conduct for United States Judges in 1973. The only holdout is the Supreme Court, and no number of reaffirmations and restatements will make its recalcitrance look any better.
Several Republican senators—including Thom Tillis (R-NC) and Charles Grassley (R-IA)—briefly suggested that they might eventually be open to some congressional oversight of the Court. If so, it will be because they have accepted Judge Luttig’s admonition that the subject of the Supreme Court’s “ethical standards of conduct … is emphatically not a partisan political issue.” As he put it, the Court has a “continuing obligation to assess itself,” and every justice has a responsibility to ensure that questions about their ethical conduct need not even be raised.
