Justice Kagan is Right About the Need for Effective Supreme Court Ethics Reform
On July 29, Supreme Court Justice Elena Kagan proposed at a judicial conference that Chief Justice Roberts appoint a panel of judges to enforce the Court’s code of conduct. She stated that she trusts Roberts, noting that if he were to form “a committee of highly respected judges with a great deal of experience and a reputation for fairness,” it could be a promising solution.
Kagan’s remarks emphasize the ongoing challenges posed by the current Supreme Court ethics crisis and the need for ethics reform. The American public wants transparency and accountability at the Supreme Court. Recent polling has shown that only 43% of Americans approve of the Court’s performance, while 52% disapprove, highlighting significant dissatisfaction with the Court’s handling of its responsibilities and its failure to meet ethical standards. Kagan’s remarks are particularly timely, given the increased scrutiny surrounding justices following several concerning ethics scandals involving Justices Thomas and Alito. The question now is: How can we address this ethics crisis?
In her July remarks, Kagan emphasized that to enforce ethical reforms on the Court, there must be a balance struck between holding the justices accountable and preserving their independence. The system should be strict but still respect the Court’s role as the final authority on constitutional and legal matters. Maintaining a balance between the branches of government is crucial because the separation of powers allows each branch to function independently, preventing overreach and ensuring the integrity of judicial decisions.
The Federal Judicial Code of Conduct
The Federal Judicial Code of Conduct, which only applies to lower court judges, was created in 1973 in response to growing concerns about judicial behavior and conflicts of interest. It is intended to guide the ethical conduct of federal judges, but it does not apply directly to Supreme Court justices. While the code does not impose binding rules on the Supreme Court, it does have some indirect relevance; for instance, the Judicial Conference, which oversees the administration of federal courts, has stated that the canons of the code are instructive. This means these rules serve as a guide rather than a mandate. Despite this, the justices are still expected to adhere to certain ethical standards, such as limiting expense reimbursements to the actual or estimated costs of travel, food, and lodging for themselves and their spouses or relatives. They also must comply with the statutory requirements for financial disclosure, which helps maintain transparency and accountability.
Impeachment
Justice Thomas, in particular, has demonstrated the weaknesses of a system that trusts the justices to correctly make these disclosures, especially given there is no guaranteed accountability when they fail to comply. The impeachment of federal judges has been an important way to address judicial misconduct, but it also highlights the limitations of using such a politically charged process for enforcing ethics. For example, in 1804, Associate Justice Samuel Chase was impeached by the House of Representatives on charges of political bias but was ultimately acquitted by the Senate.
More recently, in 2010, Judge Thomas Porteous, who served on the Eastern District of Louisiana, was impeached and removed from office for corruption and accepting bribes. These cases show that while impeachment is a constitutional method of addressing problems with judges, it’s rarely used and often complicated by politics. This is evident today with ongoing controversies involving Thomas and the increasing partisan divide. Notably, Rep. Ocasio-Cortez (D-NY) filed impeachment articles against Alito and Thomas in July.
Resignation
Abe Fortas’s tenure on the Supreme Court and his subsequent resignation in 1969 further illuminate the complexities of judicial accountability. Unlike those who faced impeachment, Fortas resigned under significant public and political pressure stemming from ethical controversies. Fortas was appointed by President Lyndon B. Johnson in 1965 and was known for his advocacy for judicial independence. He later faced criticism for accepting substantial honoraria and for his close ties with Johnson, leading to accusations of conflicts of interest.
The scrutiny over these issues intensified with allegations of improper financial dealings, ultimately prompting Fortas’s resignation before any impeachment steps were taken. Although not directly a result of the Fortas scandal, the Judicial Conduct and Disability Act of 1980 and increased financial disclosure requirements became a part of the broader effort to address ethical issues within the judiciary. Fortas’s case remains a significant reference point in discussions about judicial ethics, demonstrating the ongoing challenge of balancing judicial independence with accountability.
Voluntary Code of Conduct
In response to years of discussion and increasing pressure to address ethics concerns, all nine justices finalized and signed their own voluntary Code of Conduct in 2023. They stated that this code was intended to “dispel” the public’s “misunderstanding” that the justices “regard themselves as unrestricted by any ethics rules.” However, the Court has faced criticism for not establishing any enforcement mechanisms in the code, weakening similar provisions that were in the lower courts’ code.
Despite the code’s publication, it has not prevented the troubling behavior reported in recent months. For example, Alito sent a letter to Congress explaining why he did not believe he should recuse himself from the Trump v. United States case, citing two incidents of perceived bias involving flying flags displayed outside of his Fairfax, Virginia and vacation homes. In his letter, he referenced the code of conduct the Court released in 2023, arguing that these incidents do not meet the conditions for recusal outlined by the Code.
It is important to note that the justices hold differing opinions on the extent to which the Court should be held to various terms of accountability. Justice Gorsuch stated his belief in the importance of an independent judiciary, sharing that Congress should not govern the Court and to “be careful” in an interview with Fox News. In an interview with the New York Times, Gorsuch declined to comment on Kagan’s endorsement of the creation of a judicial panel to monitor the justices’ compliance with the court’s ethics code. Alito said in an interview published in the Wall Street Journal’s opinion section, “Congress did not create the Supreme Court. I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
While not all justices have publicly shared their views, the challenge of achieving consensus on how to both maintain and enforce the Court’s ethical standards remains.
Practical Steps Forward
Based on the history of navigating court reform and autonomy along with Kagan’s remarks, there are some practical steps that could be taken to make Supreme Court ethics enforcement more effective. One approach is to create an independent oversight committee, composed of circuit court justices, to help serve as a regulatory body overseeing the ethics of the Supreme Court. While the Federal Judicial Conference (FJC) sets ethical standards for lower courts, extending its role to include the Supreme Court could enhance oversight.
The independent oversight committee would be tasked with reviewing ethics complaints and enforcing the code of conduct. The committee would also have the authority to conduct investigations into any reported misconduct.
Another step forward would be to implement measures to make the ethics process more transparent. It could include publishing summaries of investigations and outcomes — while still protecting sensitive information. Transparency would not only enhance public trust but also deter any potential ethical violations.
Additionally, maintaining a regular review and update of ethical standards is crucial. By continually revising these standards in response to new challenges and lessons learned, the Court can address emerging ethical issues effectively and uphold its integrity. Extending the FJC’s authority to encompass the Supreme Court would serve beneficial to address the issues of judicial conduct and ensure consistency throughout the federal judiciary.
Since the FJC already includes the chief judge of each judicial circuit, the chief judge of the Court of International Trade, and a district judge from each regional judicial circuit, expanding its jurisdiction to include the Supreme Court would be straightforward. Chief Justice Roberts already serves as the chair of the FJC.
In conclusion, by adopting Kagan’s proposals and their emphasis on independent oversight, clarity, and transparency, the Supreme Court can take crucial steps towards refining its ethical framework. These steps not only build upon historical precedents but also offer a practical approach for strengthening trust and integrity in the highest court of the land.
Sophia Abedi is an intern at Alliance for Justice.