Some in Congress question lack of Supreme Court ethics code

In recent months, federal courts have become a lightning rod for high voltage litigation, intense media attention, and congressional actions and reactions. From the disputed 2020 election results to the Jan. 6 attack on the U.S. Capitol, from COVID-19 pandemic restrictions to abortions, and from the confirmation of a new Supreme Court justice to conflict allegations against a sitting high court justice, not a day goes by, it seems, that one court or another isn’t in the news. And Congress is not far behind with its usual outcries and nostrums. 

This should not be a surprise, especially in the midst of the closely watched midterm elections for control of Congress. Most polls show Republicans within striking distance of retaking control of one or both chambers — a daunting prospect for sitting majority Democrats and President Biden.   

The possibility of a party switch of gavels on the Hill to the party not in the White House is a common modern occurrence: under Bill Clinton in 1994; to George W. Bush in 2006; to Barack Obama in 2010; and to Donald J. Trump in 2018. This development puts the incumbent party in Congress on tenterhooks as it struggles to resist what almost seems a natural public tendency to bump the rascals off their king-of-the-Hill perch. 

The confluence of Congress and the courts is amplified during such a period as a president’s momentum and prestige is threatened and, along with it, an unfinished legislative agenda and the ability to nominate new judges.   

Many of these concerns were highlighted during a House Judiciary subcommittee’s hearing April 27 on “Building Confidence in the Supreme Court through Ethics and Recusal Reforms.” At the heart of the controversy is the fact that the Supreme Court is exempt from the Judicial Code of Ethics that applies to all lower federal courts.   

To remedy this, Rep. Hank Johnson (D-Ga.), chairman of the Subcommittee on Courts, Intellectual Property and the Internet that hosted the hearing, introduced on July 28, the “Supreme Court Ethics Act” (H.R. 4766). It would bring the Supreme Court under the same ethical and recusal standards as the rest of the federal bench.  The 14-line bill simply calls on the Judicial Conference of the United States, not later than one-year after enactment, to “issue a code of conduct, which applies to each justice and judge of the courts of the United States.”   

The magnet that attracted special attention to the hearing was the revelation that Virginia “Ginni” Thomas, wife of Supreme Court Justice Clarence Thomas, has been deeply involved in various conservative causes, including (via email) the Jan. 6 effort by Trump to overturn the 2020 election results. And yet, Justice Thomas did not recuse himself in two cases involving that dispute, filing the lone, dissenting view against the Court’s refusal to hear the lower courts’ decisions upholding the legitimacy of the results and Congress’s access to related documents in the National Archives.   

Committee Republicans, on the other hand, like ranking Judiciary Republican Jim Jordan (Ohio), characterized the “ethics reform” effort as the latest in a series of moves to preempt rulings by the Court’s conservative majority of six Republican- and three Democratic-appointed justices from working its will. They point to Democrats’ proposals to expand the Supreme Court from nine to 13 members (“court packing”), enacting the judicial ethics-recusal reforms, impeaching and removing Thomas for conflicts of interest, and, if needed to enact the latter two measures, abolishing the Senate filibuster.  

Applying the same ethics and recusal rules uniformly to all federal courts appeals broadly to most Americans polled on the issue. According to a March 2022 C-SPAN-Pierrepoint poll, 72 percent of likely voters “think Supreme Court justices need their own code of ethics.”   

The Supreme Court has avoided such a self-imposed code as an assertion of its independence from interference by the other branches or by lower courts.  However, in 2019 Justice Elena Kagan testified to Congress that Chief Justice John Roberts was considering applying an ethics code to the high court. And, in his December 2021 “Year-end Report on the Federal Judiciary,” Roberts signaled that he considers revising codes of conduct for the judiciary a matter of highly focused attention moving forward.  

It should be noted that even the current Code of Conduct for Judges, devised by the Judicial Conference, is not binding on the lower federal courts.  According to a Congressional Research Service “Legal Sidebar” on the issue (April 6, 2022 Update), it is considered a set of “aspirational rules” which federal judges should strive to abide by. There is no enforcement mechanism and it cannot be the basis for any civil liability or criminal prosecution.  

The same is presumably true of recusal regulations, even though there is a recusal statute that specifically applies to the Supreme Court. The statute has never been challenged as to its constitutionality. The Courts simply comply on voluntary basis, they argue.   

Despite all the due deference to an independent judiciary over the years, Congress has not shied away from impeaching federal judges for egregious misconduct. Yet, the only Supreme Court justice to be impeached was Samuel Chase, in 1805, and the Senate failed to convict and remove him. Impeachment is one area in which the judgment of Congress is final, without recourse to appeal through the courts.   

Even if some in Congress think a judge’s refusal to recuse for an alleged conflict is an impeachable offense, it will be stretch to find a House majority to impeach, let alone a two-thirds Senate majority to convict. Nevertheless, it is certain this Democratic Congress will continue to scramble for ways to inhibit high court dominance and impose standards of conduct. 

Don Wolfensberger is a fellow at the Woodrow Wilson International Center for Scholars and the Bipartisan Policy Center, former staff director of the House Rules Committee and author of “Changing Cultures in Congress: From Fair Play to Power Plays.” The views expressed are solely his own.