March 13, 2023
After the January 6th Insurrection, the U.S. government argued before the Supreme Court that the White House should turn all communications over to a select committee that would investigate the January 6th Insurrection. Some of these communications involved Virginia “Ginni” Thomas, the wife of Justice Thomas. Normally, this would be cause for recusal by Justice Thomas.[i] However, the Supreme Court is the one court in the United States where the Judicial Code of Conduct is merely suggested, not required. Whether a justice should recuse themselves from a case is left to their discretion.
The instance with Justice Thomas is one incident of many that have contributed to a negative perception of the Supreme Court. Its approval rating is the lowest it has been in decades, at 40%, and only 47% of the country feels like they can trust the court. The latter is a 20% drop from just two years ago.[ii] This demonstrates a declining trust in the Supreme Court, even though the court system was designed to be impartial, separated from the other branches of government, and insulated from public opinion. Every judge takes an oath when they start serving that says, “I, A. B., do solemnly swear or affirm, that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as, according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States. So help me God.”[iii] If the public does not trust the Supreme Court to uphold this oath, there needs to be a change.
The solution is obvious: an overhaul of the ethics rules to increase transparency through the introduction of an enforceable Code of Conduct.[iv]
The first step would be to adopt the Code of Conduct permanently and make it enforceable for the Supreme Court. Its enforcement, currently, is voluntary and up to the justices’ discretion. Justices are allowed to consult other resources, like the Court’s Legal Office and Judicial Conference Committee on Codes of Conduct. Ultimately, though, the judges decide how and when the recusal rules should be enforced. This is different from federal judges and state judges who must adhere to strict rules that detail when to recuse themselves. These situations include when judges have a financial interest in the case or when there is a strong possibility of bias.[v] The Supreme Court justices have indicated in the past they have “agreed on standards on behavior.”[vi] This process should be brought to the public light where the general public can see it, which would grant credibility to this process and reaffirm the Court’s commitment to public accountability.
This revised Code of Conduct would also include information on how to deal with spouses, which a Politico report has clarified is a pressing issue. The report detailed how Justice Coney Barrett’s husband was part of a law firm that listed many Fortune 500 companies as clients. In the most recent disclosure form for justices, Justice Coney Barrett not only redacted the clients, but she also redacted the name of the law firm. These clients have appeared before the Supreme Court multiple times. Another underrecognized potential conflict is with the wife of Chief Justice Roberts. His wife is a legal head-hunter at a firm that “represents high-powered attorneys in their efforts to secure positions in wealthy firms.”[vii] Chief Justice Roberts lists his wife’s company on his disclosure form but not her clients, even though some of her clients have worked on Supreme Court cases.
One potential issue with the implementation of a Code of Conduct is the policies regarding recusal. The Supreme Court is distinct from the rest of the court system in that there is no replacement if a justice recuses themself. On the lower circuits, there are other judges who can take up the case. A recusal from a Supreme Court justice would leave the court at eight justices. This opens the potential for a tie, which would mean that the decision of the lower court would stand.[viii] However, this problem is superseded by the potential for bias. If judges cannot make impartial decisions or are viewed as being unable to do so by the public, a tie matters a lot less. Impartiality and fairness should always take precedent over awkward situations where there is a tie. Additionally, showing the public that the Supreme Court is seriously considering the problem of bias would provide cover for a uncomfortable situation when a tie could occur.[ix]
These problems would all be fixed by a complete overhaul of the Court’s accountability and transparency. This starts with the Code of Conduct and continues with the disclosure forms. The Code of Conduct has to force the justices to comply with it and ensure accountability. This may mean there has to be an Inspector General, or a system must be created where the justices are providing oversight over the other justices. This way, a justice can bring a case of recusal before the other justices, ensuring much needed accountability and transparency in the public eye.
Photo by Joe Ravi via Wikimedia Commons license CC-BY-SA 3.0.
[i] Totenberg, Nina. “Legal Ethics Experts Agree: Justice Thomas Must Recuse in Insurrection Cases.” NPR. NPR, March 30, 2022. https://www.npr.org/2022/03/30/1089595933/legal-ethics-experts-agree-justice-thomas-must-recuse-in-insurrection-cases.
[ii] Jones, Jeffrey M. “Supreme Court Trust, Job Approval at Historical Lows.” Gallup.com. Gallup, November 1, 2022. https://news.gallup.com/poll/402044/supreme-court-trust-job-approval-historical-lows.aspx.
[iii] “Federal Judiciary Act (1789).” National Archives and Records Administration. National Archives and Records Administration. Accessed February 23, 2023. https://www.archives.gov/milestone-documents/federal-judiciary-act.
[iv] “Code of Ethics.” Fix the Court, October 11, 2022. https://fixthecourt.com/fix/code-of-ethics/.
[v] “Recuse.” Legal Information Institute. Legal Information Institute. Accessed February 23, 2023. https://www.law.cornell.edu/wex/recuse#:~:text=The%20Due%20Process%20clauses%20of,judge’s%20decision%20will%20be%20biased.
[vi] 130, and 194. “Supreme Court Ethics Reform.” Brennan Center for Justice. Accessed February 23, 2023. https://www.brennancenter.org/our-work/research-reports/supreme-court-ethics-reform.
[vii] “Justices Shield Spouses’ Work from Potential Conflict of Interest Disclosures.” POLITICO. Accessed February 23, 2023. https://www.politico.com/news/2022/09/29/justices-spouses-conflict-of-interest-disclosures-00059549.
[viii] “Educational Resources.” United States Courts. Accessed February 23, 2023. https://www.uscourts.gov/about-federal-courts/educational-resources.
[ix] Fine, Glenn. “The Supreme Court Needs Real Oversight.” The Atlantic. Atlantic Media Company, December 15, 2022. https://www.theatlantic.com/ideas/archive/2022/12/supreme-court-ginni-thomas-january-6-ethics-oversight/672357/.
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