A leading legal expert says Senate passage of Sen. Sheldon Whitehouse’s bill to require the Supreme Court to adopt a stronger ethics code could send a strong signal — even if it is likely impossible to pass the current House of Representatives. To get representatives.
Sen. Whitehouse, D-R.I., introduced his bill in February 2023 in the wake of ProPublica’s reporting on Judge Clarence Thomas’ long history of accepting gifts and trips from a powerful, conservative billionaire friend.
The nine justices unanimously announced opposition to the bill, which has languished since the Democratic-led Senate Judiciary Committee advanced the legislation in July 2023. Republicans in Congress and the Senate predicted the bill would go nowhere.
Yet the Supreme Court ultimately adopted an ethics code that legal experts widely criticized as unenforceable.
James Sample, a professor of constitutional law at Hofstra University, said public pressure, along with Whitehouse’s bill, had an impact on judges who have long resisted adopting such a code.
He noted that in 2011, Chief Justice John Roberts used his comments on the state of the judiciary to challenge the idea that there was any rationale for such a code.
“Do I think the court or the Senate should pass the bill? Absolutely,” Sample told Salon. “Do I think this is likely to happen before the election? No, but crazier things have happened. And change is often accelerated by dramatic and easily understood events. And you know, if Judge Alito doesn’t want Congress to impose an enforcement mechanism, at some level he and Judge Thomas have only themselves to blame.”
Sample said that if the Supreme Court had adopted an enforcement mechanism or upheld long-standing standards, “we might not be having this discussion.”
“There’s a dynamic at some point where the court, by not reining itself in, by not regulating itself in a meaningful way, is really only presenting two options,” Sample said. “Either we simply accept a Supreme Court that is immensely compromised and where there is no recourse. Or the other branches have a constitutional duty and power to intervene and promote due process.”
In the wake of The New York Times reporting on political flags being flown at two of Alito’s homes — including his beach house — Whitehouse is again calling for passage of his bill, which he says would add much-needed teeth.
Legal experts, including Amanda Frost, a professor at the University of Virginia School of Law, told Salon that Alito has a responsibility to avoid creating perceptions that undermine the legitimacy of the judiciary with public political statements and preferences.
Sample said he felt the first report of an upside-down flag — a symbol of the Stop the Steal movement — flown near the Alito home in the wake of the Jan. 6 insurrection was a “relatively minor issue.” was compared to concerns about justice. Clarence Thomas’ ruling in January 6 cases, despite his wife’s role in the movement.
“However, the fact that there is a second flag completely contradicts Judge Alito’s original statement for the first flag,” Sample said. “And the fact that there is a second flag is actually an indication that Judge Alito is not only partisan and participating in the political process in ways that judges should not, but that he actually has contempt for the idea of judicial ethics . .”
Alito spoke to a Fox News reporter to defend the upside-down flag flying near his home. According to him, this flag took place briefly after a neighborhood dispute involving his wife.
ProPublica also revealed Alito’s luxury fishing trip with GOP billionaire Paul Singer, who later had cases in court.
“No one ever asks judges what the facts are,” Sample said. “Judges speak in right-wing media or leak through sources, but no official statements in which you tell the truth or are punished.”
So, what would the bill do?
The bill would give the Supreme Court 180 days to issue a procedure for individuals to file complaints alleging that a judge violated the code of conduct, the disqualification rules of United States Code § 455, “any other applicable provision of the federal law” or “any other applicable provision of federal law.” has otherwise engaged in conduct that undermines the integrity of the Supreme Court.”
Once the Supreme Court files a complaint, the court will then refer it to a judicial review panel consisting of five judges randomly selected from the chief judges of each of the U.S. circuits.
The panel would review and investigate the complaints through hearings, testimony and subpoenas. Findings and recommended actions are then presented, including dismissal of the complaint, disciplinary action, or changes in Supreme Court rules or procedures.
The panel could publish its findings on recommendations for rejected complaints if it believes publication would further the public interest.
The chief justice’s counsel would also set rules for the disclosure of gifts, income and compensation.
The bill also contains rules for disqualification: including when a judge knows that a party in a procedure has spent money to support his or her appointment. Judges could also be disqualified if they, a family member or their private entity receive a gift from a party to a proceeding. And judges would have a “duty to know” and determine whether a proceeding could have “substantial” consequences for their own or their family’s financial interests.
“If at any time a judge, judge, magistrate judge, or bankruptcy judge of the United States becomes aware of a condition which might reasonably require disqualification under this section, the judge or judge shall promptly notify all parties to the proceeding” , the bill reads. .
Supporters say the bill would build on current ethics codes for federal judges.
The Supreme Court’s current ethics code — based on the existing code of conduct for judges of lower federal courts — requires judges and justices to “refrain from political activities” and avoid “all impropriety and the appearance of impropriety in all activities.” Most relevantly, that Code of Conduct states that a “judge may not knowingly comment publicly on the merits of a case pending or threatened before a court.”
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WHO IS AGAINST THE BILL?
Alito himself has resisted calls for more transparency and stricter ethical requirements. Last summer he told the Wall Street Journal that “Congress does not have the power to impose a code of ethics on the Supreme Court.”
“The traditional idea of how judges and justices should behave is that they should keep their mouths shut,” Alito said. “But that just doesn’t happen, and so at a certain point I said to myself: no one else is going to do this, so I have to defend myself.”
Salon examined lobbying and nonprofit data and found that the conservative Heritage Foundation lobbied for Whitehouse’s bill in 2023.
A representative for the Heritage Foundation did not respond to request for comment Thursday.
Ginni Thomas, a former congressional staffer, once worked at the Heritage Foundation. Judge Thomas failed to report his wife’s income from the Heritage Foundation from 2003 to 2007, the Los Angeles Times reported in 2011.
In a July 2023 post, the Heritage Foundation derided the legislation as a response to a “fake ‘ethics crisis'” and as an attempt to “create new ways to manipulate the Supreme Court and its decisions.”
The conservative think tank criticized the bill for allowing “unlimited” complaints against judges.
WHAT COULD COME NEXT?
Legal experts say there is a growing consensus that the Constitution is not a barrier to Congress requiring the Supreme Court to adopt an ethics code with an enforcement mechanism.
“The Constitution absolutely not only allows Congress to do that, but actually contemplates that Congress will do that,” Jennifer Ahearn, senior adviser at the Brennan Center’s Judiciary Program, told Salon.
In a recent article in Hofstra Law Review, Ahearn and her co-author argued that because the court does not have the strength or the purse strings to exercise its power, the “collective acceptance of the court’s authority by the public… is the center of her power. .”
“But, contrary to the views of Justice Alito and others, the fact that there are limitations on Congress’s power to regulate in this area does not mean that Congress has no authority to do so,” the article said . “Given the structure of the Constitution, Congress must protect both types of judicial independence: independence from corrupting outside influences and independence from undue interference from the other branches.”
Sample, who testified about the bill before the Senate Judiciary Committee last year, said that from the Supreme Court’s inception, Congress has provided its funding, set the number of justices and regulated the court through the recusal statute.
“While it is true that the Court is a co-equal branch, as Justice Kagan emphatically stated in her remarks, if the Court were not regulated by the other branches, it would be the only branch for which that would be done.” Be true,” Sample said. “And that just doesn’t make sense that that would be the structure that was intended without it being expressed.”
Still, passage of the bill faces steep hurdles in Congress as it stands.
But Sample said the bill’s passage in the Senate could send a strong message to the Senate.
And Ahearn said party dynamics can always change.
“These things take time,” she said. “And so you have to work on them, even if you can’t guarantee they will pass in the time frame you want.”
