Apr 8, 2023 - Politics & Policy

Inside Senate Democrats' effort to force Supreme Court ethics code

Sen. Chris Van Hollen (D-Md.) speaking in a congressional hearing in March 2023.

Sen. Chris Van Hollen speaking in a congressional hearing in March 2023. Photo: Al Drago/Bloomberg via Getty Images

Over a dozen Senate Democrats are backing a proposal to compel the Supreme Court to create or adopt an ethics code for justices by attaching language to next year's funding bill.

Why it matters: The Supreme Court is the only court in the federal judiciary that does not have a formal code of ethics for its nine members. Longstanding calls for the court to adopt one escalated this week after ProPublica reported on Supreme Court Justice Clarence Thomas' alleged ties to a GOP megadonor.

  • Whether the Supreme Court should adopt a formal ethics code and how exactly the code would be enforced has been an ongoing subject of debate and study within the court for years, the New York Times notes.

Driving the news: Fifteen Senate Democrats, including Sen. Sheldon Whitehouse (D-R.I.), chair of both the Senate Budget and Judiciary committees, recently sent a letter containing the proposal to the chamber's appropriations subcommittee that oversees the court's budget.

  • Sen. Chris Van Hollen (D-Md.), chair of the Senate Appropriations subcommittee, said in a statement to Axios this week that the "Supreme Court should have a code of ethics to govern the conduct of its members, and its refusal to adopt such standards has contributed to eroding public confidence in the highest court in the land.
  • "It is unacceptable that the Supreme Court has exempted itself from the accountability that applies to all other members of our federal courts, and I believe Congress should act to remedy this problem."

What's happening: The issue got a fresh round of attention on Thursday when ProPublica reported that Thomas has gone on luxury vacations paid for by Harlan Crow, a Dallas real estate magnate and big GOP donor, without disclosing them as required.

  • Thomas used Crow's private jet, vacationed on his superyacht and stayed at his private resort in the Adirondacks "every summer for more than two decades," according to ProPublica.

How the code of conduct works for most U.S. judges

Most federal judges are beholden to the Code of Conduct for United States Judges, which includes ethical canons that guide judges in their official duties and engagement in activities outside their position, like political events.

  • The code is adopted by the Judicial Conference of the United States, a policymaking body established by Congress for the lower federal courts, to promote public confidence in the integrity and impartiality of the judiciary — which the nine Supreme Court justices are not bound by.
  • Though the Supreme Court has not formally adopted a code, its members are still subject to federal statues that impose ethical standards on all federal judges, such as one that requires them to recuse themselves from cases for specific personal bias or financial conflicts.

The code and the highest court

Chief Justice John Roberts, who heads the Judicial Conference, has said that the Supreme Court's lack of an ethics code does not mean justices are exempt from principles that other federal justices observe, as they all consult the code and other sources, including judicial opinions, treatises and disciplinary decisions.

  • Roberts argues that the code cannot be the Supreme Court's definitive source of ethical guidance because "it does not adequately answer ... ethical considerations unique to the Supreme Court" and is meant to manage courts created by Congress specifically, not the Supreme Court, which is the only part of the federal judiciary specifically required by the Constitution.

Yes, but: Legal groups including the American Bar Association and some Congress members and federal judges have argued that the Supreme Court's lack of a formal code opens itself up to politicization efforts and damages the public's belief in its independence and integrity.

  • Some point to Thomas' refusal to recuse himself from cases pertaining to the U.S. Capitol riot and 2020 election after it was reported that his conservative activist wife, Ginni Thomas, repeatedly urged the Trump White House to take steps to overturn the 2020 election results.

What Senate Democrats are proposing

In the letter, the Democrats urge the Subcommittee on Financial Services and General Government to include language in the 2024 budge bill that would direct the Supreme Court to adopt more stringent ethics rules.

  • These would include a code of conduct, more transparent recusal rules for justices and the establishment of a procedure for receiving and investigating misconduct complaints against justices.
  • "Nowhere in the federal judiciary is vigilance against even the appearance of impropriety more important than at the highest court in the land," the letter reads.

Could the proposal work?

Van Hollen, while endorsing the proposal, said it would require bipartisan support, which is now rare, given the composition of Congress.

  • A spokesperson for Sen. Bill Hagerty (R-Tenn.), the ranking member of the Senate Appropriations subcommittee, told Axios in a statement this week that the ethics code "is a policy question that is separate from the funding levels for Supreme Court operations and security."
  • Hagerty's spokesperson criticized leveraging Supreme Court funding for the ethics change after the court asked Congress for increased security assistance.
  • The Supreme Court has requested $150.8 million for the next fiscal year. This includes a roughly $5.9 million rise for security activities in response to increased threats against the justices and their families.

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