(CNN) — For decades, Supreme Court justices have dodged questions related to conflicts of interest by saying essentially “Trust us” or “We’re different.” They’ve refused to be bound by an official ethics code and grievance procedures that cover other federal judges.
But mounting public pressure may finally spur changes. Court sources have told CNN that internal discussions, which date back at least to 2019, have been revived. The timing of any public resolution is uncertain, however, and it appears some justices have been more hopeful than others about reaching consensus.
This week, in an action that demonstrates the intensifying national concern over the justices’ behavior, the American Bar Association’s House of Delegates approved a resolution urging the high court to adopt a binding code of ethics “comparable” to the code in place for lower-court US judges.
Unlike liberal groups that have been pounding on the justices to establish ethics rules, neither the ABA nor its policy-making House of Delegates is known for criticizing the high court. The 591-member House of Delegates is more associated with establishment positions than flamethrowing advocacy.
The current accelerated scrutiny of the justices’ extracurricular behavior arises against a backdrop of rulings that have broken norms. The conservative majority has been more willing than prior courts to jettison decades of precedent, most startlingly in last June’s decision reversing the 1973 Roe v. Wade abortion rights landmark. More recently, the court’s stature has been undermined by the early leak of the Dobbs opinion that overturned Roe and other security lapses.
Together, the substance of cases and refusal to address ethics issues evoke an unaccountable court that will rule as it wishes and act as it wants, without regard for public concern.
New York University law professor Stephen Gillers believes the court’s standing has been diminished by its reluctance to address ethical concerns.
“There’s almost no willingness to engage with the repeated call from various venues, and now the ABA,” Gillers said, calling the court’s lack of response “incredible, tone-deaf,” and adding, “I think that has hurt the court’s reputation.”
Scrutiny over recusals and spouses’ actions
Growing criticism of America’s top court, including from members of Congress seeking accountability, could cause the justices to finally act. They previously worked behind the scenes to formalize ethics rules, but the effort stalled. In 2019, Justice Elena Kagan, commenting publicly on the negotiations over a code of ethics, told a US House committee that discussions were underway. “It’s something that is being thought very seriously about,” Kagan said.
Court sources told CNN that internal discussions have continued and that some justices hope a code might be crafted in due course.
The justices rarely address recusal, that is, why they decide to sit out a case or are hearing one that critics say could pose a conflict. Their disclosure filings include limited information about their finances, those of their spouses and various reimbursements for travel.
Activities of spouses have spurred more questions regarding recusals, particularly related to Justice Clarence Thomas. He resolved cases with his colleagues arising from former President Donald Trump‘s failed 2020 reelection bid, as his wife, Virginia “Ginni” Thomas, worked with White House allies to challenge Joe Biden‘s victory.
Neither Justice Thomas nor Chief Justice John Roberts responded to press inquiries about potential conflicts when information about Ginni Thomas’ activities became public through the US House investigation into the January 6, 2021, insurrection at the Capitol.
Ginni Thomas’ lawyer, Mark Paoletta, suggested in testimony last year before a US House subcommittee that the Supreme Court could continue with the current practice of consulting with, rather than formally following, existing code that covers lower-court judges. During an April 2022 hearing titled “Building Confidence in the Supreme Court through ethics and Recusal reforms,” Paoletta said: “There is nothing wrong with ethics and recusals at the Supreme Court. The justices are ethical and honorable public servants. Moreover, to support any reform legislation right now would be to validate this vicious political attack on the Supreme Court.”
The Supreme Court’s public information office declined to comment Thursday.
NYU’s Gillers, who focuses on legal and judicial ethics, traces some of today’s criticism of the court’s ethics to America’s enduring abortion wars and the June decision in Dobbs v. Jackson Women’s Health Organization.
“It’s hard for a lot of people to understand why Roe could be overturned simply because the composition of the court changed,” he said. “Why now, after nearly 49 years of Republicans and Democrats supporting Roe?”
The reversal, indeed, followed the addition of the new Trump appointees to the court.
Yet Gillers said the justices’ off-bench behavior and their enduring lack of a formal code of ethics are rightfully being scrutinized and affect the court’s stature.
The court’s legitimacy has been increasingly debated, even publicly among the justices, since the Dobbs ruling.
When the ABA House of Delegates voted on its resolution in New Orleans on Monday, an accompanying report said, “The absence of a clearly articulated, binding code of ethics for the justices of the Court imperils the legitimacy of the Court. More than that, this absence potentially imperils the legitimacy of all American courts and the American judicial system, given the Court’s central role enshrined in our federal republic.”
Key federal law excludes justices
The nine justices are covered by a federal law dictating that jurists disqualify themselves from a case when their “impartiality might reasonably be questioned,” but they are exempted from the federal judicial channels for resolving complaints and lack a specific ethics code governing their activities.
So, for example in 2018, more than 80 complaints filed against US appeals court Judge Brett Kavanaugh, arising from his tumultuous Supreme Court nomination hearings, were summarily dismissed after the Senate confirmed him as a justice.
US appeals court Judge Timothy Tymkovich, who wrote the judicial council’s dismissal of those complaints, referred to the 1980 judicial conduct law that excludes the nine justices.
“The allegations contained in the complaints are serious,” he said, “but the Judicial Council is obligated to adhere to the Act. Lacking statutory authority to do anything more, the complaints must be dismissed because an intervening event — Justice Kavanaugh’s confirmation to the Supreme Court — has made the complaints no longer appropriate for consideration under the Act.”
Among the proposals that have circulated in Congress are those that would require the justices to adopt their own code of conduct within a set period (lest Congress itself impose a code) and to create new recusal constraints related to income, gifts and reimbursements.
In 2011, Roberts explained some of the factors that allowed the high court to be shielded from strictures related to recusals.
“Lower court judges can freely substitute for one another,” Roberts wrote in an annual year-end report. “If an appeals court or district court judge withdraws from a case, there is another federal judge who can serve in that recused judge’s place. But the Supreme Court consists of nine Members who always sit together, and if a Justice withdraws from a case, the Court must sit without its full membership. A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy.”
He also said that the Supreme Court “does not sit in judgment of one of its own Members’ decision whether to recuse in the course of deciding a case.”
At the time of Roberts’ 2011 statement, outside critics were questioning whether Thomas and Kagan should sit on the first major dispute over the Affordable Care Act — Thomas because of his wife’s opposition to the 2010 health care law and Kagan because of her prior work in the Obama administration.
Without addressing those justices directly, Roberts wrote, “I have complete confidence in the capability of my colleagues to determine when recusal is warranted. They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”
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