Proposals For Enforcement Of The Supreme Court’s New Ethics Code

Civil Rights Policy Brief #215 | By: Rodney A. Maggay | December 11, 2023

Photo taken from: https://www.washingtonpost.com/

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On November 13, 2023 the United States Supreme Court announced that it would be adopting an ethical code for the Court for the first time ever. While the set of ethical canons is similar in many respects to a code that many lower court federal judges have to abide by, the code adopted by the Supreme Court differs in one significant way – there is no enforcement mechanism. What would likely happen in practice at the high court is that enforcement of the new code would be up to each individual member of the Court, in effect a situation where each Justice would be policing his or her own conduct.

However, a number of proposals have been put forth to remedy this gap in the new Supreme Court ethics code. Glenn Fine, an adjunct professor at the Georgetown University Law Center, has proposed a permanent investigative office be created to investigate complaints at the court, similar to an inspector general office. The non – profit group Citizens for Responsibility and Ethics in Washington (CREW) has proposed a panel of retired judges to review ethical issues and recusal motions. And, just this past summer before the high court adopted an ethical code a Senate bill named the Supreme Court Ethics, Recusal and Transparency (SCERT) Act was introduced in the chamber. The bill is much more comprehensive and addresses more issues and imposes additional requirements (e.g., requirement for a panel to issue a report explaining their findings, rules on gifts). The bill, introduced by Sen. Sheldon Whitehouse, a Democrat from Rhode Island, was actually approved by the Senate Judiciary Committee by an 11 – 10 vote. However, passage by the full Senate chamber on the SCERT bill seems unlikely. LEARN MORE

Analysis

While there has been much uproar on the lack of an enforcement mechanism in the Supreme Court’s new ethical code, the fact of the matter is that there are numerous proposals out there that could fill in this glaring hole in the new code. The lack of a way to enforce any ethical code on the Supreme Court was a known flaw that had been discussed even before the Supreme Court made their announcement. Sen. Whitehouse’s SCERT bill in the summer of 2023 even predated the Supreme Court’s announcement in November so government officials knew that this issue was one they were going to fight over. But with numerous proposals out there, the fight does not have to be a lengthy or protracted one.

A common theme found in the proposals supported by Professor Fine, the non – profit group CREW and the SCERT bill is that there be an independent panel to review the ethical scenarios faced by the justices. The proposals may differ in the details but it is the composition of panels and staffing by non – sitting Justices that make these proposals stand out. This is important because what the proposals are trying to do is eliminate the Justices from policing their own conduct and determining for themselves whether their course of conduct is ethically proper or not. Under the proposal supported by Professor Fine, the Justices would be subject to a review from an inspector general like office. Under the proposal supported by CREW, it would not be a permanent investigatory office but a panel of retired judges convened by the Chief Justice (or another non – Justice official to ensure another layer of neutrality). And under the SCERT Act, the bill proposes that a rotating panel of chief judges from the federal appeals court be convened to review ethical complaints. These proposals are similar on one major point  – that an independent office or panel made up of non – Justices should review complaints in order to enforce a code of professional responsibility on the high court. Until individual Justices are removed from policing themselves, any ethical codes or standards will be meaningless.

All of these proposals also offer different standards and obligations and even if neither of the proposals were adopted it would still be good sense to pick bits and pieces of the best aspects of each and try to include them in a final version. The proposal of a permanent investigative office similar to an inspector general’s office is one that needs to be seriously considered and one that could help restore the reputation of the high court. By having a permanent office, the public would be assured that there would always been an office ready to go at a moment’s notice to investigate ethical complaints instead of waiting for a panel to be convened which could be delayed by weeks or months. The report requirements of the SCERT Act could also be implemented as the statutory obligation to write a report on why they accepted a gift or why they did or did not recuse themselves from a case would force a Justice to put their thinking officially down on paper and let the public know their legal rationales for why they took the action they did. The Supreme Court may be hesitant to adopt these proposals but even if they resist, these proposals can be implemented by Congressional action. Congress is empowered by the Constitution to determine what cases the Court may hear and the number of Justices that sit on the high court so there is no question that Congress can also impose additional requirements such as an ethical code. While the SCERT bill so far is the only proposal that has come from Congress, adding the other proposals supported by Professor Fine and the non – profit group CREW to a Congressional bill would be a way for Congress to make those proposals mandatory should Congress find a way to get it approved by both legislative houses.

Regardless of what a final ethical code with enforcement mechanisms would look like, there are numerous proposals floating around out there and enough options for a full and robust enforcement mechanism to be pieced together and grafted on to the new code adopted by the Supreme Court. LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.

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