Federal judges are required to abide by a Code of Conduct. Among other rules, judges are not allowed to receive gifts over a certain monetary value (for fear of bribery), donate to or publicly endorse a political candidate or party (to keep the judiciary apolitical), or hear and decide a case in which they have a conflict of interest. Every judge is covered by the Code of Conduct — that is, except the justices of the Supreme Court.
This discrepancy, which for years had primarily been of interest to legal scholars, has gained increased public attention since the February death of Justice Antonin Scalia at a Texas resort. Scalia’s trip to Cibolo Creek Ranch was free, fully paid for by a man who had received a favorable ruling from the Court last year.
S. 1072 and H.R. 1943, the Supreme Court Ethics Act, would require that the highest judicial body in the land abide by the same set of rules as the more than 750 judges on the nation’s appeals courts and district courts. The bills are sponsored by Sen. Chris Murphy (D-CT) and Rep. Louise Slaughter (D-NY25).
“The questionable activities of some of our Supreme Court justices have been well documented — participating in political functions, failing to report family income from political groups, and attending fundraisers. It doesn’t make sense that members of the highest court in the land are the only federal judges exempt from the code of conduct,” said Slaughter. The bill “would, for the first time, make sure the justices adhere to the federal code of conduct and are accountable for these types of ethically dubious activities.”
“There is absolutely no reason why Supreme Court Justices shouldn’t be subject to the same code of conduct as all other federal judges,” said Murphy. “This bill will make the court more accountable and more transparent, and will help guarantee the integrity of our country’s highest court.”
A petition calling for implementation has collected more than 131,000 signatures.
Supreme Court Chief Justice John Roberts defended his court’s exemption from the rules, saying they strive to follow them even if they’re not legally required to. “All Members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations. In this way, the Code plays the same role for the Justices as it does for other federal judges.”
Roberts also noted that “The Justices file the same financial disclosure reports as other federal judges. Those reports disclose, among other things, the Justices’ nongovernmental income, investments, liabilities, gifts, and reimbursements from third parties” — even though that’s not legally required of them either.
Despite this claim, however, there have been cases where members of the Court arguably broke the ethics rules. One of the more notable examples in recent years also involved Scalia, who went hunting in 2004 with then-Vice President Dick Cheney while a lawsuit against Cheney was pending before the Court, yet Scalia refused to recuse himself from the case.
Law professor Josh Blackman has also warned that the law may be unconstitutional, under the logic that Congress has no power to regulate the Supreme Court — — a co-equal branch of government.
Odds of passage
The House version of the bill has 109 cosponsors, all Democrats. GovTrack was unable to locate a single definitive statement from a sitting Republican explaining why they oppose the measure. The party’s opposition — and vice versa the Democrats’ support — may be because most of the concerns regarding Supreme Court members’ ethics in the past few years have regarded conservative justices.
The bills have been referred to the House and Senate Judiciary Committees since their April 2015 introductions, but have not yet received a vote.
Republican and chair of the Senate Judiciary Committee Sen. Chuck Grassley (R-IA) has introduced the somewhat-similar S. 1418, the Judicial Transparency and Ethics Enhancement Act, which would create a “judicial inspector general” with oversight over the Supreme Court. However, the bill would not bind members to the Code of Conduct. It has no cosponsors.