U.S. Supreme Court

ABA task force recommends ethics and transparency changes for Supreme Court

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“Addressing the issues involving the public’s perception and confidence in the judiciary today proved to be a formidable undertaking,” said former ABA President Linda Klein. Image from Shutterstock.

The U.S. Supreme Court should adopt and publish a code of conduct, according to recommendations released Friday by an ABA task force created to recommend steps to increase the public’s trust and understanding of the judiciary.

But that’s just the beginning, according to the ABA Task Force on Law, Society and the Judiciary.

The task force also said Supreme Court justices should provide greater transparency regarding their reasons for recusals, should establish “more robust rules” for disclosure of income and investments by immediate family members, and should provide at least a brief written decision on requests for emergency relief.

The task force also said Supreme Court justices and other federal judges should hold investments in a blind trust whenever possible.

Judicial ethics was one of five topics addressed by the ABA Task Force on Law, Society and the Judiciary. Other topics included judicial transparency, the judicial confirmation process, judicial security and public education.

The task force said public trust in the judiciary has eroded because of lack of an ethics code, combined with allegations that some Supreme Court justices “have failed to live up to the highest ethical standards.”

The report included footnotes referencing news coverage of Justice Clarence Thomas’ free trips from billionaire Republican megadonor Harlan Crow, Justice Samuel Alito’s free trip to an Alaskan fishing lodge financed by two wealthy people, and a push by a staff member for Justice Sonia Sotomayor for institutions hosting her appearances to buy books.

The task force report is here, and a press release is here. Its recommendations have not been reviewed or approved by the ABA House of Delegates, the association’s policymaking body.

The House of Delegates, however, has also addressed judicial ethics in a February 2023 recommendation known as Resolution 400. It urges the Supreme Court to adopt a binding code of judicial ethics that is similar to the ethics code that applies to other federal judges.

Gabe Roth, executive director of the court transparency group Fix the Court, told the ABA Journal that the task force report is an “admirable” and “measured look at what ails the Supreme Court from an ethics and transparency perspective.”

Asked which specific recommendations were important, Roth replied that “the totality” of the report is important. He viewed the recommendations as nonpartisan because none impacts one set of justices more than another.

The task force was chaired by former ABA President Linda Klein, a partner at Baker, Donelson, Bearman, Caldwell & Berkowitz.

“Addressing the issues involving the public’s perception and confidence in the judiciary today proved to be a formidable undertaking,” Klein said in the press release. “Amidst all the divisiveness, political haranguing and misinformation, the task force attempted to cut through the noise and come up with bipartisan and executable suggestions for improving the situation.”

More specifically, task force recommendations include:

  • To provide for greater transparency regarding recusals, the Supreme Court and Congress should consider a mechanism for communicating a justice’s reasoning for or against recusal.
  • The U.S. Judicial Conference should require judges and justices to hold investments in a blind trust to avoid even the appearance of bias. Investments held in the trust would include stocks, bonds and real estate, with the exception of the judge’s primary residence. In addition, the Judicial Conference and the Supreme Court should adopt rules prohibiting federal judges and Supreme Court justices from holding individual stocks or similar financial instruments.
  • the Judicial Conference and the Supreme Court should establish rules requiring judges to disclose income, investments and transactions for their immediate family members, including the source of that income and the approximate range. Immediate family should include the judge’s spouse, domestic partner, dependent children and others living in the household.
  • The Supreme Court should provide at least brief written decisions for all motions, requests for emergency relief, interim orders and merits cases. Federal appeals courts should provide at least brief written decisions for substantive motions and unpublished or summary decisions.
  • Congress should pass legislation prohibiting justices and immediate family members from receiving any reimbursement from any entity except for reasonable out-of-pocket expenses.
  • Congress should enact legislation prohibiting judges and justices and their immediate families from receiving any financial gift, honorarium or other payment from any institution except: as reimbursement for reasonable out-of-pocket expenses for travel or for teaching or speaking engagements at an academic institution.
  • Congress should enact legislation to bar judges and Supreme Court justices, together with other household members, from receiving any gift as defined by policy adopted by the Judicial Conference. The definition defines gifts as items with monetary value but does not include social hospitality based on a personal relationship and does not include modest items such as greeting cards and trophies.
  • Every judicial nominee should answer 10 questions during the confirmation process. They include: What are the most important qualities that you have seen in a judge and would seek to emulate? What do you see as an appropriate public role for a judge? What is your approach to interpreting the Constitution and statutes? Can you provide an example of an instance where you thought you had the right answer to a dispute or dilemma but changed your mind?

See also:

ABAJournal.com: “Supreme Court ethics legislation will advance after Alito revelations, committee chairman says”

ABAJournal.com: “Can Congress bind Supreme Court on ethics code? Alito offers opinion”

ABAJournal.com: “Supreme Court justices should follow binding code of ethics, ABA House says”

ABAJournal.com: “No summer break for Supreme Court ethics debate”

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