Can the Supreme Court rely on an 'honor system' for ethics? These 3 proposals go further
When the U.S. Supreme Court released its new ethics code Monday, critics such as Democratic U.S. Sen. Sheldon Whitehouse of Rhode Island complained that it relied on an “honor system,” rather than an enforcement mechanism.
The new Code of Conduct for Justices of the Supreme Court of the United States has five canons that address issues such as recusal, permissible extrajudicial activities and limits on outside income. In many ways, it resembles the code governing lower-court judges.
But there is a process to consider ethics complaints against lower-court judges. The Supreme Court didn’t adopt any with its ethics code, although a commentary to the code dangled the possibility of adding staff members to assist with ethics review.
“The court will assess whether it needs additional resources in its clerk’s office or Office of Legal Counsel to perform initial and ongoing review of recusal and other ethics issues,” the commentary said.
Several proposals for an enforcement mechanism would go further.
Whitehouse has sponsored legislation that would create a panel of judges to review ethics complaints. Other recommendations are for a judiciary inspector general and for a panel of retired judges to do the job.
Creating one body to provide ethics reviews and advice has the benefit of consistency, according to Gabe Roth, executive director of the court transparency group Fix the Court. That would have the judiciary “singing from the same songbook as to what constitutes an ethical violation,” he observes.
A complaint protocol is also needed to spell out who can report misconduct and how the complaints are recorded, Roth says. Currently, “there’s no inbox” for Supreme Court ethics complaints, Roth says, crediting Whitehouse with the turn of phrase.
Separation of powers
But can Congress regulate the Supreme Court? Justice Samuel Alito told the Wall Street Journal in July that he thought that it would violate separation of powers.
“No provision in the Constitution gives them the authority to regulate the Supreme Court—period,” Alito said.
That concern has some observers suggesting that it would be better for the Supreme Court to implement the review mechanism. For the same reason, any system of review should avoid fines or censures, says former U.S. District Judge Jeremy Fogel of the Northern District of California, a former director of the Federal Judicial Center who is currently executive director of the Berkeley Judicial Institute.
“If you were to create something with that type of oversight, public criticism or censure, the court would push back really hard on that as a violation of separation of powers,” Fogel says.
The enforcement regime for lower federal courts is spelled out in the Judicial Conduct and Disability Act. It allows anyone to file a complaint that a federal judge has engaged in conduct “prejudicial to the effective and expeditious administration of the business of the courts.” The law requires the chief judge of a circuit to consider any complaints and refer those that warrant investigation to a special committee of judges that can recommend that the circuit’s judicial council assess discipline.
Discipline for lower-court judges can include ethics training, anti-harassment training, a censure or reprimand, according to Roth. Cases could also be temporarily removed from a lower-court judge.
What an ethics review could look like
Proposals for a Supreme Court ethics review process look different. They include:
• A randomly selected panel of five chief judges from the federal appeals courts would investigate complaints. This is the approach in the Supreme Court Ethics, Recusal and Transparency Act, which was approved by the Senate Judiciary Committee in July. The panel would make findings and recommendations and present them to the Supreme Court. It would issue a report if dismissal of the complaint is not recommended, and it would have the option of publishing a report if dismissal is recommended.
Sponsor of the SCERT Act is Whitehouse. “A code of ethics is not binding unless there is a mechanism to investigate possible violations and enforce the rules,” Whitehouse said in a statement after the Supreme Court released its new ethics code. “The honor system has not worked for members of the Roberts Court.”
• A professional, permanent investigative office with the powers of an inspector general could be created to investigate serious complaints of misconduct against federal judges and Supreme Court justices. This proposal has been advanced by Glenn Fine, a former inspector general for the U.S. Department of Justice, a fellow at the Brookings Institution and an adjunct professor at the Georgetown University Law Center.
“The judiciary needs independence, but it should have an internal oversight body that investigates misconduct and determines the facts,” Fine says. “My thesis is that trust in the court and the judiciary has declined, and a credible internal enforcement mechanism could increase the public’s trust in the court.”
Under Fine’s proposal, the inspector general could be appointed by Chief Justice John Roberts or by the chief of the Administrative Office of the U.S. Courts. It should have subpoena power to conduct investigations, and it would issue a report that is public absent special circumstances that would require secrecy.
But the IG wouldn’t have authority to review decisions on recusal. It wouldn’t impose punishments, such as a censure. It couldn’t mandate changes. The benefit of this approach, Fine says, is transparency.
The Supreme Court could appoint an inspector general, but it would help if it was authorized by statute and if funding was provided, Fine says.
A judiciary inspector general was also proposed in a bill called the Judicial Transparency and Ethics Enhancement Act. One of the sponsors was Republican U.S. Sen. Charles Grassley of Iowa, who said in a 2015 press release self-regulation of judges “has time and time again proven inadequate.”
• Roberts would designate a panel of retired judges with “deep experience” and unquestioned “ethical integrity” to consider ethics complaints and recusal motions. The panel would also offer advice when a justice has doubts about the proper course of conduct. This proposal has been advanced by Fogel and Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington.
The panel’s advice and findings would be confidential and nonbinding.
Outside ethics complaints and disqualification motions would be screened by the Supreme Court’s Office of Legal Counsel. Those raising significant ethics questions would be referred to the panel of retired judges.
Although its advice is confidential, the panel would issue an annual public report on the number of complaints that it received and the number of advisory opinions that it provided.
Fogel says the proposal “is meant to start a conversation.” What he and Bookbinder are trying to do, he says, is to “come up with something that we could actually imagine the court agreeing to.”