I have a deep, abiding respect for the judiciary as an independent, co-equal branch of our government, and it is because of that deep respect I believe congressional action is needed to save the court from itself.
Americans’ constitutional rights are best protected when the people of this country have access to our courthouse doors. When corporations seek to take advantage of us, when our elected leaders seek to erode our civil rights, our citizens should be able to trust the court system with their complaints.
Much of the power of the judicial branch is founded in the trust placed in it by the American public. But that trust has been systematically eroded over the last several years. In a July 2023 report, the Pew Research Center found that a majority of Americans have an unfavorable view of the Supreme Court for the first time since their polling began more than 35 years ago. Decline in Americans’ trust was significant and sudden — in just three years, 1 in 4 Americans went from having a positive opinion of the Court to a negative opinion.
It’s not hard to see why the American public has lost trust in the judicial branch. Confirmations to the bench that once took months have been rushed through the Senate. Senators talk about “flipping” courts from blue to red, as though they’re swing states.
As Chief Justice John Roberts wisely pointed out in his opinion in Dobbs v. Jackson Women’s Health Organization, the proper functioning of the judicial branch depends on judicial restraint. Yet in some of the most consequential court decisions in decades, settled law is being thrown aside and new doctrines developed out of thin air, without regard for past precedent. The court claims it has not become politicized. But just as they do for any institution, Americans judge the judiciary not by what it says but by what it does.
This brings us to the matter of judicial ethics.
Last November, a former far-right Christian activist claimed a justice revealed the outcome of the Hobby Lobby decision to him weeks before it was announced to the American people. Throughout the spring and summer of 2023, we encountered new revelations about unreported gifts received by Supreme Court justices, including luxury trips, school tuition and even family property paid for by parties with interests before the court.
And just two weeks ago, journalists revealed more about a Supreme Court justice spouse’s conservative activism in advance of the Citizens United decision. These conflicts of interests are not the only reason for the erosion of public trust — Americans are deeply concerned, and rightly so, that the judiciary has abandoned the notion of judicial restraint. But the ethical lapses we’ve learned of — and the implication, sometimes stated outright, that the court does not believe our system of checks and balances applies to the unelected judiciary, send a message to the American people that the institutions we count on to impartiality uphold the rule of law have discarded that impartiality for ideology.
Roberts last spring publicly acknowledged that the Supreme Court could do more to raise its ethical standards, and that, I quote, “there are ways to do that consistent with our status as an independent branch of government and the Constitution’s separation of powers.”
It is to the credit of the chief justice that he recognizes that there is a problem. But as we all know well, finding solutions — even to glaring problems — is never easy. In a perfect world, institutions would reform themselves. But our Founders created our Constitution knowing that we do not live in a perfect world. They built our system of checks and balances precisely so that every branch of government could, when appropriate, be held accountable.
And so, Congress does not just have a role to play, Congress has a role it must play in restoring the public trust in the judicial branch. Every Congress, I sponsor the Supreme Court Ethics, Recusal and Transparency Act, which would among other things require the Judicial Conference of the United States to create a code of ethical conduct for the Supreme Court of the United States. Last month, I called for House Judiciary Committee Chairman Jim Jordan (R-Ohio) and Speaker Kevin McCarthy (R-Calif.) to bring this legislation before Congress for consideration, as the Senate has with a similar bill.
It is long past time for the highest court in the land to have the highest ethical standards in the land. But that alone is not enough to restore trust in a judiciary, and a Supreme Court, whose actions have politicized it in the eyes of the American people.
That is why I am the sponsor of the Judiciary Act, which would expand the size of the court, and the TERM Act, which I just reintroduced and would limit judges to 18-year terms on the Supreme Court before they rotate back to Court of Appeals.
The questions that come before the court all are tremendously complicated. We may not agree on all the answers — and I respect that, because it’s part of our constitutional system. But at the end of the day, the most fundamental questions facing the judiciary are matters of basic American principles and simple common sense.
When I practiced as an attorney, I went into every case knowing that I might draw a judge who agreed with my arguments, and I might draw one who wouldn’t. But I knew that as long as my client had a judge who was impartial, one who would act without a conflict of interest, or even the appearance of a conflict of interest, my client would be treated fairly.
That bedrock trust in the judiciary can never be taken for granted. It’s the beating heart of the rule of law. It’s the reason so many Americans — including those serving in Congress — have been comfortable allowing unelected judges far more power than that granted in the Constitution.
At the most basic level, it’s what We, the People deserve.
Hank Johnson is a senior member of the House Judiciary Committee and ranking member of the Subcommittee on Courts, Intellectual Property and the Internet. Prior to Congress, he was a defense attorney for 27 years and served as a magistrate judge for 12 years.