Members of Congress reintroduced legislation Thursday that would create a code of ethical conduct for the Supreme Court, adding to pressure on a court facing criticism over high-profile leaks and conflicts of interest.
The congressional action comes after the American Bar Association on Monday adopted a resolution urging the Supreme Court to enact a code of judicial ethics similar to what judges in lower courts are beholden to.
“The absence of a clearly articulated, binding code of ethics for the justices of the Court imperils the legitimacy of the Court,” the ABA wrote.
Senators cited the role of Justice Clarence Thomas’ wife, Ginni Thomas, in the Jan. 6, 2021, insurrection, as well as the leaked draft opinion in Dobbs v. Jackson Women’s Health Organization that overturned Roe v. Wade in June 2022, and “concerning credible reports” that Justice Samuel Alito was involved in leaking information, as reasons why the court’s legitimacy is under threat and reform is needed.
Besides the high-profile examples, justices “have also filed inaccurate financial disclosures, attended partisan events, and accepted travel and lodging paid for by political advocacy organizations with business before the court,” Sen. Chris Murphy (D-Conn.) and others wrote in a press release for the Supreme Court Ethics Act.
Rep. Hank Johnson (D-Ga.) reintroduced the Supreme Court Ethics, Recusal, and Transparency Act as companion legislation in the House.
“The Supreme Court is one of the nation’s most vital institutions, so people are justifiably shocked when they learn that there is no code of conduct for the Supreme Court, even though there is for every other federal judge and member of Congress,” said Rep. Jerrold Nadler (D-N.Y.), the top Democrat in the House Judiciary Committee, in the press release.
This isn’t the first time the court has been under scrutiny over the issue. Justice Elena Kagan said at a House budget hearing in 2019 that Chief Justice John Roberts was studying the possibility of an ethics code and there were “pros and cons,” but it was “being thought very seriously about.”
In 2011, Roberts wrote that the Supreme Court was unique and pushed back against having a code of conduct apply to it.
“All Members of the Court do in fact consult the Code of Conduct in
assessing their ethical obligations,” he wrote, saying that the code for lower court judges is one of the tools that justices use for guidance.
He also said that Supreme Court justices consider recusing themselves from cases, but unlike lower courts, there is no higher court to review their decisions, and also no pool of other judges to fill in since there are only nine justices.
Brian Fallon of Demand Justice, a group seeking to reform the Supreme Court, told MSNBC that the reintroduced Senate legislation to have justices follow the code of ethics for lower courts is the “least we can do,” but the Supreme Court won’t go for it.
“Because they think they should be above reproach, they won’t surrender the power to any outside entity or official to do the enforcing of that code of ethics,” he said.