The Supreme Court has failed to reach consensus on an ethics code of conduct specific to the nine justices despite internal discussion dating back at least four years, according to people familiar with the matter.
It remains an active topic at the court, these people said, and the court’s legal counsel Ethan Torrey prepared a working document of issues for them to consider. There is no timeline for the justices to act, however. Those familiar with the matter spoke on the condition of anonymity to discuss the situation.
The inertia has frustrated critics, whose demands for reform have intensified. The court’s profile has only increased as a new majority has moved rapidly on a range of polarizing issues. That has also increased scrutiny on the justices, the activities of their spouses and when the court’s members should recuse themselves from cases.
Democrats call for Clarence Thomas to recuse himself from Jan. 6 cases
1:58
Democratic lawmakers on March 27 called for Supreme Court Justice Clarence Thomas to recuse himself from cases involving efforts to overturn the 2020 election. (Video: JM Rieger/The Washington Post)
Justice Clarence Thomas, whose wife Virginia “Ginni” Thomas took an active role in challenging the outcome of the 2020 presidential election while her husband considered cases on the subject, has become a particular focus.
Justice Clarence Thomas. (Jonathan Newton/The Washington Post)
This week, leaders of the American Bar Association joined those urging action, saying that “the absence of a clearly articulated, binding code of ethics for the justices of the Court imperils the legitimacy of the Court.” The call was not motivated by “any particular conduct by any one or more current or former members of the Court,” the group said.
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“This is a break-the-glass moment on Supreme Court ethics,” said Gabe Roth of the group Fix the Court, which has long advocated for greater accountability and transparency at the court. “I don’t think an ethics code is a panacea, but I think there is a perception that the justices are not taking their ethical responsibilities seriously enough.”
Although the justices say they voluntarily comply with the same ethical guidelines that apply to other federal judges, the lack of an ethics code has become a prominent complaint on Capitol Hill, where in 2019 Justice Elena Kagan told a congressional committee that Chief Justice John G. Roberts Jr. was “seriously” studying the issue. But a discussion among the justices failed to produce agreement, people familiar with the matter said.
Rep. Hank Johnson (D-Ga.), who sponsored legislation to create a code of conduct for the court, said Americans are becoming impatient. “I do not understand why there has not been a conclusion reached on this so-called study,” Johnson said. “It just seems like it has been quietly dropped, hoping the public will turn its attention to other matters and never come back to this issue.”
Why Democrats are pushing for a Supreme Court ethics code
3:34
Democratic lawmakers renewed calls to create a code of ethical conduct for the U.S. Supreme Court amid mounting scrutiny of Justice Thomas and his wife. (Video: The Washington Post)
Roberts declined to comment for this article.
But in the past, the chief justice said he and his colleagues voluntarily comply with the same standards that govern other judges, including recusal from cases in which they or close family members might have a financial interest. Justices file annual financial disclosure forms, including reports on outside income, travel paid for by others and gifts. Those annual disclosure reports include stock ownership and notices of spousal employment.
Chief Justice John G. Roberts Jr. and Justice Elena Kagan, with retired justice Anthony M. Kennedy, at President Biden’s State of the Union address Tuesday at the U.S. Capitol. (Jonathan Newton/The Washington Post)
Supreme Court justices, like other federal judges, are subject to a federal recusal statute that requires disqualification from “any proceeding in which his impartiality might reasonably be questioned.” But Roberts and other justices have said in the past that they cannot be bound by all of the rules that apply to lower court judges because of the unique role the Constitution assigns the Supreme Court as the ultimate decision-maker in the nation’s judiciary.
That raises issues about who would adjudicate ethics complaints that might be filed against the justices, they say, and complicates recusal decisions. Justices make their own calls about when to recuse, and no other judge is authorized to replace them.
Legal ethics experts say it is possible for the justices to create a code and that there is benefit in publicly pledging to comply with certain standards. A group of scholars last year urged the court to act on its own rather than allow Congress to prescribe a remedy that could raise separation of powers issues.
Steven Lubet, one of the signers and an emeritus law professor at Northwestern University, acknowledged there are serious questions about who would adjudicate complaints made against the justices. Nonetheless, he said the court underestimates the importance of the justices committing to greater transparency.
“The public would understand what the rules are that the court is following internally,” he said.
The court’s off-and-on consideration of such standards suggests at least some members believe there is a value as well.
Kagan and Justice Samuel A. Alito Jr. discussed the issue before a congressional committee in March 2019 that was considering the court’s budget request. Alito stressed during the hearing that justices attempt to conduct themselves according to judicial conduct codes and “in a manner that appears to the public that is fully ethical.” But he underscored the difficulties of simply complying with the code that governs lower-court judges.
Kagan indicated she believes there was value in the court making a pledge. “The chief justice is studying the question of whether to have a code of judicial conduct that is applicable only to the United States Supreme Court,” Kagan said at the time. “That’s something we have not discussed as a conference yet, and has pros and cons I’m sure, but it’s something that’s being thought very seriously about.”
But agreement was apparently elusive.
It remains an active topic at the court, these people said, and the court’s legal counsel Ethan Torrey prepared a working document of issues for them to consider. There is no timeline for the justices to act, however. Those familiar with the matter spoke on the condition of anonymity to discuss the situation.
The inertia has frustrated critics, whose demands for reform have intensified. The court’s profile has only increased as a new majority has moved rapidly on a range of polarizing issues. That has also increased scrutiny on the justices, the activities of their spouses and when the court’s members should recuse themselves from cases.
Democrats call for Clarence Thomas to recuse himself from Jan. 6 cases
1:58
Democratic lawmakers on March 27 called for Supreme Court Justice Clarence Thomas to recuse himself from cases involving efforts to overturn the 2020 election. (Video: JM Rieger/The Washington Post)
Justice Clarence Thomas, whose wife Virginia “Ginni” Thomas took an active role in challenging the outcome of the 2020 presidential election while her husband considered cases on the subject, has become a particular focus.
Justice Clarence Thomas. (Jonathan Newton/The Washington Post)
This week, leaders of the American Bar Association joined those urging action, saying that “the absence of a clearly articulated, binding code of ethics for the justices of the Court imperils the legitimacy of the Court.” The call was not motivated by “any particular conduct by any one or more current or former members of the Court,” the group said.
ADVERTISING
“This is a break-the-glass moment on Supreme Court ethics,” said Gabe Roth of the group Fix the Court, which has long advocated for greater accountability and transparency at the court. “I don’t think an ethics code is a panacea, but I think there is a perception that the justices are not taking their ethical responsibilities seriously enough.”
Although the justices say they voluntarily comply with the same ethical guidelines that apply to other federal judges, the lack of an ethics code has become a prominent complaint on Capitol Hill, where in 2019 Justice Elena Kagan told a congressional committee that Chief Justice John G. Roberts Jr. was “seriously” studying the issue. But a discussion among the justices failed to produce agreement, people familiar with the matter said.
Rep. Hank Johnson (D-Ga.), who sponsored legislation to create a code of conduct for the court, said Americans are becoming impatient. “I do not understand why there has not been a conclusion reached on this so-called study,” Johnson said. “It just seems like it has been quietly dropped, hoping the public will turn its attention to other matters and never come back to this issue.”
Why Democrats are pushing for a Supreme Court ethics code
3:34
Democratic lawmakers renewed calls to create a code of ethical conduct for the U.S. Supreme Court amid mounting scrutiny of Justice Thomas and his wife. (Video: The Washington Post)
Roberts declined to comment for this article.
But in the past, the chief justice said he and his colleagues voluntarily comply with the same standards that govern other judges, including recusal from cases in which they or close family members might have a financial interest. Justices file annual financial disclosure forms, including reports on outside income, travel paid for by others and gifts. Those annual disclosure reports include stock ownership and notices of spousal employment.
Chief Justice John G. Roberts Jr. and Justice Elena Kagan, with retired justice Anthony M. Kennedy, at President Biden’s State of the Union address Tuesday at the U.S. Capitol. (Jonathan Newton/The Washington Post)
Supreme Court justices, like other federal judges, are subject to a federal recusal statute that requires disqualification from “any proceeding in which his impartiality might reasonably be questioned.” But Roberts and other justices have said in the past that they cannot be bound by all of the rules that apply to lower court judges because of the unique role the Constitution assigns the Supreme Court as the ultimate decision-maker in the nation’s judiciary.
That raises issues about who would adjudicate ethics complaints that might be filed against the justices, they say, and complicates recusal decisions. Justices make their own calls about when to recuse, and no other judge is authorized to replace them.
Legal ethics experts say it is possible for the justices to create a code and that there is benefit in publicly pledging to comply with certain standards. A group of scholars last year urged the court to act on its own rather than allow Congress to prescribe a remedy that could raise separation of powers issues.
Steven Lubet, one of the signers and an emeritus law professor at Northwestern University, acknowledged there are serious questions about who would adjudicate complaints made against the justices. Nonetheless, he said the court underestimates the importance of the justices committing to greater transparency.
“The public would understand what the rules are that the court is following internally,” he said.
The court’s off-and-on consideration of such standards suggests at least some members believe there is a value as well.
Kagan and Justice Samuel A. Alito Jr. discussed the issue before a congressional committee in March 2019 that was considering the court’s budget request. Alito stressed during the hearing that justices attempt to conduct themselves according to judicial conduct codes and “in a manner that appears to the public that is fully ethical.” But he underscored the difficulties of simply complying with the code that governs lower-court judges.
Kagan indicated she believes there was value in the court making a pledge. “The chief justice is studying the question of whether to have a code of judicial conduct that is applicable only to the United States Supreme Court,” Kagan said at the time. “That’s something we have not discussed as a conference yet, and has pros and cons I’m sure, but it’s something that’s being thought very seriously about.”
But agreement was apparently elusive.