Last week, the U.S. Senate Judiciary committee passed the Supreme Court Ethics, Recusal, and Transparency Act of 2023.
The fact the bill passed out of committee is considered a huge success, but commentators speculate it’s unlikely to go any further. Democrats hail the bill as a much-needed reform measure considering the public’s declining trust in the Supreme Court — and the revelations about Justices Thomas and Alito accepting luxury trips and other gifts and Sotomayor prodding colleges and libraries to buy her books. Republicans decry the bill as “harassing and intimidating the Supreme Court” (says Iowa Sen. Chuck Grassley) and that it will “destroy” the high court (says South Carolina Sen. Lindsey Graham).
We’ve looked over the bill and, while it’s a good first step, it frankly doesn’t go far enough.
The Supreme Court Ethics, Recusal, and Transparency Act would require the justices to craft a code of conduct for themselves. At the moment, they don’t technically have one, though they are subject to the Ethics in Government Act of 1978 (which we’ll come back to in a moment).
The bill would do several significant things: It would set up a panel to receive and investigate complaints about Supreme Court justices (though it’s not clear what authority the panel would have to implement penalties or changes); establish criteria for disqualifying a justice from presiding over a case (something that only previously applied to judges); and expound upon what kinds of gifts, reimbursements and financial relationships must be disclosed, including by bringing disclosure guidelines in line with the current rules governing the House and Senate.
The one thing this bill does not have is any enforcement mechanisms. But its predecessor did.
The Ethics in Government Act established various ethics offices, including the Office of Government Ethics and the Judicial Ethics Committee, and laid out a set of rules for financial disclosures that applies to all three branches of government — the executive, the legislative and the judicial.
The EGA “[r]equires the Chief Justice and the Associate Justices of the Supreme Court” and other judges to file an annual financial report including “(1) sources amounts of income, gifts and reimbursements; (2) the identity and approximate value of property held and liabilities owed; (3) transactions in property, commodities and securities; and (4) certain financial interests of a spouse or dependent,” as well as “additional information regarding positions held with business entities, and agreements with respect to future employment and continuation of payments by former employers.”
Failure to file this report or falsifying any aspect of the report is punishable by a fine of up to $5,000 per charge. (The Project On Government Oversight has written to the U.S Attorney General’s Office asking it to pursue Justice Thomas for failing to meet the disclosure requirements.)
Unfortunately, the EGA’s penalties have been easily sidestepped. It’s unclear that any fines have been levied against a Supreme Court justice; possibly because the Judicial Ethics Committee must bring the matter to the U.S. Attorney General for prosecution, and the Supreme Court has long proclaimed the Judicial Ethics Committee only has jurisdiction over the lower courts.
While we would like to see the Supreme Court held to a higher — and official — set of standards, any code of conduct is only as good as its ability to be enforced. The Supreme Court Ethics, Recusal, and Transparency Act has virtually no enforcement mechanism, and its predecessor’s hasn’t been used as it should be. As it stands, the new bill is all bark and no bite.
