Should the United States Supreme Court undergo ethics’ reforms? It really depends on who you ask.
Everything seems to be looked at from a political lens these days. And, as the various agencies of the federal government are viewed with ever-increasing skepticism, no institution is immune from scrutiny and criticism. In recent years, the ethics of the country’s highest court have also come under the microscope.
President Joe Biden, a Democrat, had blasted the conservative-majority Supreme Court this summer for what he said was “extremism” in its rulings. Biden also called for an enforceable ethics code and term limits, most likely of 18 years. The Associated Press pointed out that three justices that would be term limited first – Justice Clearance Thomas, Chief Justice John Roberts and Justice Samuel Alito — are all conservatives.
When the high court went into session again, on Oct. 7th, observers – and the public – were perhaps more focused on the justices themselves than they were the docket.
And President Joe Biden, a Democrat, stirred more Supreme Court controversy this summer when he blasted the conservative-majority court for what he called “extremism” in its rulings. Biden also called for an enforceable ethic code and term limits, most likely of 18 years.
Biden has railed against the Supreme Court for overturning the Roe v. Wade in 2022 by sending abortion law back to the states – and a 2023 decision that struck down affirmative action in college admissions. The “evisceration” of affirmative action, the reversal of federal abortion law and what Biden called the 2013 gutting of the Voting Rights Act of 1964 were all “outrageous” decisions, according to the current president.
Senate Minority Leader Mitch McConnell, R-Kentucky, called out Biden last summer for what the Republican said was taking a “torch” to the “crown jewel of our system of government.”
McConnell further criticized Biden for playing partisan politics with the nation’s highest court. “President Biden and his leftist allies don’t like the current composition of the court, so they want to shred the Constitution to change it.”
Trust in the United States Supreme Court is very much rooted in a citizen’s political party affiliation, a recent survey found. “Democrats overwhelmingly viewed the high court unfavorably at 85 percent, while more than two-thirds of Republicans have a favorable view,” a Connecticut Mirror survey found when polling its state’s residents. Further, it found that “more than half of independents have an unfavorable impression of the Supreme Court.”
A binding Supreme Court ethics code, and term limits for justices, have been hot topics. And, while the survey found both creating an ethics code and establishing term limits had overall majority support, it was divided along party lines. The support for reforms mostly depended on the politics of the respondent, according to the Connecticut Mirror study. A majority of Democrats favored ethics codes for justices. Most Republicans surveyed were either against the changes, or declined to share their opinions.
The two candidates for president weighed in on Biden’s plan. President elect Donald Trump told Fox News that Biden’s plan was “going nowhere” and “He knows that too.”
Meanwhile, Vice President Kamala Harris supported Biden in a statement, saying “There is a clear crisis of confidence facing the Supreme Court.”
Complaints Grow over Supreme Court Justices’ Ethics
The topic of an ethics code for justices has been raised notably after Democrats made news by complaining about conservative Justice Clarence Thomas’ undisclosed gifts and deals from a GOP donor. Democrats have claimed the gifts could influence the way Thomas votes on cases, especially those involving Trump.
More recently, an ethics complaint was filed by conservative think tank The Center for Renewing America against liberal justice Ketanji Brown Jackson. The latest complaint claimed Jackson – the newest member of the Supreme Court – had failed to disclose her husband’s income. The complaint accuses Jackson of “willfully” omitting required income disclosures for years while serving as a federal judge.
Jackson also recently received $3 million in a book deal. That figure raised eyebrows, but it is not technically covered under outside income limits. Instead, book royalties and advances are exempted from the justices’ outside income limit.
While it is not uncommon for justices to write books and receive royalties and advances, the $3 million advance given to Jackson was the highest amount reported to date. By comparison, Justice Sonia Sotomayor received a $1.9 million book advance. Justice Brett Kavanaugh received a $340,000 book advance.
The book advances and royalties came under scrutiny following a July 2023 Associated Press report that Sotomayor’s “tax-funded court staff” had been pushing book sales at her speaking engagements.
The complaints were not limited to money issues. Justice Alito was heavily criticized by Democrats after a picture surfaced, in 2021, of an upside-down American flag flying at his home. Some of those involved in the Capitol riot on Jan. 6th used the flag as a symbol. Alito explained that his wife – who had been called a sexist and vulgar name by a liberal neighbor – had flown the flag upside-down simply as part of their feud. But Democrats called Alito compromised, and demanded he recuse himself from any cases involving Jan. 6th. Alito declined to recuse himself.
Ethics Coding — and Decoding
Late last year, the justices installed their own ethics code. But it is unenforceable. “The court does have general ethics rules related to recusals and financial disclosures,” the Connecticut Mirror said in reporting its survey results.
The survey came from Connecticut, as the state’s Democratic U.S. senators, Richard Blumenthal and Chris Murphy, have called for “more transparency” from Supreme Court justices.
“Murphy has introduced the Supreme Court Ethics Act every session of Congress over the past decade,” the newspaper reported. “His bill would task the Judicial Conference — a body created by Congress that considers policy related to the federal courts — with writing an ethics code to govern all federal judges, including the nine justices.”
Some Republicans – such as McConnell — have countered that the push toward an enforceable Supreme Court ethics code is motivated by a Democrat desire to stop the conservative-majority Supreme Court. Then-President Donald Trump appointed three conservative justices, including Kavanaugh. The other two are Justice Neil Gorsuch and Justice Amy Coney Barrett.
Two decisions by the 6-3 conservative-majority court have been viewed very differently by Democrats and Republicans. First, in June 2023, there was the Dobbs decision, which overturned the 1972 landmark Roe v. Wade decision legalizing abortions across the country. The Dobbs case — which sent the issue of abortions back to the states to decide — started an uproar among Democrats and liberals, but was generally favored by Republicans and conservatives.
The other, more-recent decision by the Supreme Court was that of ruling that presidents had broad immunity for official acts during their presidency. The decision benefitted former President Trump, who had a federal case filed against him involving the January 6th Capitol riot. Democrats saw the ruling as favoritism toward Trump, while Republicans hailed the decision as a way to protect all presidents’ ability to govern as presidents — without fear of being prosecuted for their decisions after leaving office.
After years of what Republicans – and a sizeable segment of the general public – view as “lawfare” against Trump, conservative lawmakers and voters are viewing the Democratic push for an enforceable ethics’ code with a lot of skepticism. The future of such an ethics law will depend greatly on who wins the U.S. Senate and House of Representatives, and how big the ruling party’s majority will turn out to be after the Nov. 5th election.
Republican House Speaker Mike Johnson, who is from Louisiana, called Biden’s ethics code and term-limit proposal “dead on arrival.”
Will a Supreme Court’s Ethics Rule Become a Reality?
Whether or not a Supreme Court ethics rule becomes a reality is uncertain. But the idea is favored by some law professors from the University of Nevada, Las Vegas’ own William S. Boyd School of Law.
“I believe that the U.S. Supreme Court needs to be held to an ethics rule that would ensure both the Court’s fairness and the country’s confidence in that fairness,” says Boyd Law School Professor Ann McGinley. “It is obvious that no justice should be above the commonly accepted rules of courts of fair treatment of all parties, without undue influence.”
McGinley is opposed to some of the high court’s most-recent rulings: “But many of the Court’s most recent decisions — especially the immunity decision — demonstrate a failure to do so.”
Another Boyd School of Law professor, Leslie Griffin, supports an ethics rule for the Supreme Court, but notes there are obstacles to it becoming a reality.
“I think the interesting question about ethics is how to hold the Supreme Court justices liable for ethics violations in the same way circuit and district court judges are. I think most people believe that there are more enforced ethics requirements for circuit and district court judges than for the Supremes,” Griffin notes. “I think their ethics code would look better if there were really an outside enforcer, such as the Judicial Conference of the United States. Ethics rules don’t usually work unless there is someone to enforce violations of them.”
Griffin would like to see Supreme Court justices follow the model of the lower federal courts, when it comes to ethics’ rules: “It would be great if Supreme Court Justices believed in that more, and applied the rules to themselves as lower court judges do. My view is that self-discipline rarely works in matters of ethics.”
Additionally, Griffin believes the Constitution would allow for term limits on Supreme Court justices: “Article III says they ‘shall hold their Offices during good behavior.’ Michael Waldman of the Brennan Center was in (Las Vegas) recently for Constitution Day and said: ‘If you make current justices senior judges, you are in compliance with the Constitution.’ I think that is an interesting argument.”
Griffin gives the example of retired Justice David Souter, who is now a senior judge. He stills hears cases, although not on the Supreme Court.
“That could happen with all of them, setting up term limits without a constitutional problem.”
As in so many issues, Supreme Court battle lines are being drawn between Republicans and Democrats. Both sides hope to win their case in the court of public opinion.
Valerie Miller is a Las Vegas Valley-based award-winning journalist. She can be reached at (702) 683-3986 or [email protected].
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