The Legislative Paths to Supreme Court Ethics and Accountability - Alliance for Justice

Alliance for Justice

Menu

Close

The Legislative Paths to Supreme Court Ethics and Accountability

Blog

Alice Blease

Supreme Court reform has long been a rallying cry for Alliance for Justice and other progressive civil society groups. We should always be working to ensure that the judiciary follows our laws and Constitution and delivers justice and equality for the people. As such, we must be ready to reform the system when it fails to deliver on those important outcomes. As serious ethics violations and extreme, precedent-shattering decisions have stacked, calls for Congress to take swift action have amplified.

The most prominent call to action came from the Biden administration, who on July 29 advocated for a three-pronged package to reform the Supreme Court. This package includes 1) an enforceable code of conduct for the Supreme Court (a proposal that was also recently endorsed by Justice Elena Kagan and Justice Ketanji Brown Jackson), 2) 18-year term limits for Supreme Court justices, and 3) a constitutional amendment to undo the sweeping and unprecedented presidential immunity afforded in Trump v. United States. 

Here is an overview of a series of bills introduced by lawmakers to sharpen existing ethics frameworks, increase the transparency of the highest court, and implement the reforms recently called for by President Biden.

1. Judicial Ethics and Anti-Corruption Act 2023

Bicameral legislation, originally introduced by Representative Jayapal and Senator Warren in May 2022, and reintroduced in May 2023.

Goal: To overhaul the ethics and accountability protocol at the Supreme Court.

  • Requires the Supreme Court to adopt a binding and enforceable ethics code.
  • Places restrictions on gifts and privately funded travel.
  • Imposes an absolute ban on federal judges owning individual stocks and securities.
  • Heightens recusal transparency by requiring justices to issue a written response to recusal requests made by a party before the Court.
  • Ensures the Court is accessible to the public by mandating the livestreaming of proceedings and restricting the Court from sealing public health and safety records.

2. The Supreme Court Ethics, Recusal and Transparency (SCERT) Act 2023

Introduced by Senator Whitehouse in July 2023.

Goal: To inject transparency and accountability into Supreme Court ethics matters.

  • Requires the Supreme Court to adopt a binding code of conduct and creates a robust investigatory mechanism to probe conduct in breach of that code.
  • Improves the disclosure and transparency of potential conflicts of interests by requiring justices to report and explain their recusal decisions to the public.

The SCERT Act advanced out of the Senate Judiciary Committee on July 21, 2023, and has since gained significant support from Democrats in Congress. Responding to reports of increasing Supreme Court ethics scandals, Senator Durbin attempted to steer the SCERT Act through the Senate with unanimous consent on June 12, 2024. His attempt was blocked by Senate Republicans, and the act has not yet received a floor vote.

3. The Supreme Court Tenure Establishment and Retirement Modernization (TERM) Act 2023

Introduced by Representative Johnson on September 19, 2023. 

Goal: To establish a new, regularized appointment system for Supreme Court justices. This ensures fairness and predictability in Supreme Court appointments, meaning that no president can pack the Court with justices sympathetic to their agenda.

  • The president appoints a new justice every two years in the first and third years of their presidencies.
  • Introduces a system of 18-year term limits, which operates under an active/ senior justice distinction.
  • New justices spend 18 years in active service, after which they take senior status.
  • Current justices take senior status in order of their seniority (i.e. their length of service on the Court), as new justices begin their active justice tenure.
  • To preserve the U.S. Constitution’s life tenure requirement, senior status justices continue to hold the office of Supreme Court justice, meaning that they still undertake official duties and receive compensation.
  • Should the number of justices in regular active service fall below nine, a randomly selected senior status justice sits while that seat is filled.

4. The Supreme Court Biennial Term Limits and Regular Appointments Act 2023

Introduced by Senators Whitehouse, Booker, Blumenthal, and Padilla in October 2023.

Goal: To establish a new, regularized appointments framework for Supreme Court justices.

  • The president appoints a new justice every two years within the first 120 days of the first and third years of their presidency.
  • Introduces a system of 18-year term limits, which operates in tandem with the Supreme Court’s appellate and original jurisdiction distinction.
  • For an 18-year period, new justices sit for all Supreme Court cases.
  • Only the nine most recently appointed justices sit for appellate jurisdiction cases from lower courts, which represent the majority of the Supreme Court’s docket.
  • All justices hear cases brought under the Court’s original jurisdiction, those in which the state is a party and those affecting ambassadors, other public ministers, and consuls.
  • All justices continue to exercise the other powers of office.

5. Supreme Court Offices of Ethics and Investigations Act 2024 

Introduced by Representatives Goldman, Johnson, Sherrill, and Nadler on June 4, 2024. 

Goal: To establish an Office of Ethics Counsel and an Office of Investigative Counsel to oversee ethics matters at the Supreme Court.

  • The Office of Ethics Counsel advises justices on ethical matters, including disclosure and recusal requirements.
  • The Office of Investigative Counsel investigates alleged ethical breaches and provides reports to Congress on its findings, heightening the transparency of ethics investigations. While the investigations may not be binding, the establishment of such a role introduces independent oversight to Supreme Court ethics matters, an important first step given the self-enforcing nature of the current code of conduct.

6. The High Court Gift Ban Act 2024

Introduced by Representatives Raskin and Ocasio-Cortez on June 25, 2024. 

Goal: To provide a common-sense, targeted remedy for one of the most egregious ethical violations reported on recently: the receipt of lavish gifts from wealthy benefactors with interests before the Court.

  • Bars federal judges from accepting gifts valued at over $50 on a single occasion or gifts that add up to $100 over a one-year period. This aligns the rules governing gifts for federal judges with those governing members of Congress and other federal officials.
  • Imposes limits on gifts of personal hospitality — a previously unregulated area — capping them to around $18,000.

7. Judicial FOIA Expansion Act 2024

Introduced by Representative Schiff on July 23, 2024 

Goal: To increase transparency into the Court’s inner workings.

  • Establishes a right of public access to records relating to the federal judiciary by extending the powers of the Freedom of Information Act.
  • While the Act does not establish a binding ethics code, the enhanced transparency that it provides marks an important step in ensuring that lawmakers and the wider public are fully aware of the inner workings of the federal courts — including ethics matters — and can galvanize movements to push for more meaningful accountability.

8. No Kings Act 2024 

Introduced by Majority Leader Chuck Schumer and over thirty other democratic members on August 2, 2024.

Goal: To undo Trump v. United States, the partisan ruling that granted sweeping immunity to the president from criminal prosecution.

  • Reasserts that presidents and vice presidents do not have immunity for violations of criminal law.
  • Allows the United States to bring criminal actions against the president in any district court.
  • Clarifies that Congress has the power to determine to whom federal criminal laws apply.
  • Strips the Supreme Court of its jurisdiction to hear appeals related to presidential immunity from criminal law, including cases challenging the No Kings Act.
  • The Supreme Court cannot listen to challenges to the No Kings Act. Instead, the president and vice president can challenge its constitutionality in the United States District Court for the District of Columbia and appeal that decision to the United States Court of Appeals for the District of Columbia. This is grounded in Article III of the U.S. Constitution, which states that Congress can create exceptions to the Supreme Court’s appellate jurisdiction.
  • Affords a presumption of constitutionality that can be rebutted if a party establishes its unconstitutionality with clear and convincing evidence.
  • Affords a 180-day statute of limitations for facial constitutional challenges and 90-day statute of limitations for as-applied constitutional challenges.

This list of possible court reform bills is not exhaustive. There are many other reforms that Congress can and should consider to reform the courts. So long as the Supreme Court continues to undermine our democracy, the elected branches of government must do everything in their power to hold the Court accountable to the people.

Alice Blease is a summer associate at Alliance for Justice.