CREW Senior Vice President and Chief Counsel Donald K. Sherman testified on April 27th to the House Judiciary Committee Subcommittee on the Courts, Intellectual Property, and the Internet on actions Congress can take to reform judicial ethics and rebuild confidence in the country’s highest court. Congress must step in to regulate the federal judiciary and can take a number of steps to fix inadequate rules and address self-monitoring and failures to uphold ethical conduct.
Following recent reports raising questions about justices’ impartiality in cases relating to their spouses’ political interests and actions, Congress should pass legislation supporting the creation of a Supreme Court Code of Conduct with a formal and transparent recusal process, as well as legislation enhancing disclosure requirements to make spousal conflicts of interest more transparent. Recently, Supreme Court Justice Clarence Thomas has received criticism for his failure to recuse himself from cases relating to the 2020 election despite his wife’s communications with former White House Chief of Staff Mark Meadow in support of Trump’s attempts to overturn the election. Without a formal recusal requirement, Thomas can decide not to recuse himself, despite a clear conflict of interest between his wife’s political actions and interests and cases he is hearing.
A Supreme Court Code of Conduct must also address ethical concerns that can arise from certain outside speaking engagements. Justices should not be allowed to participate in organizations with clear partisan political or judicial biases, speak at large events closed to the press, or accept any speaking invitation from current litigants or those with a history of practicing before the Court. A Code of Conduct should also contain a clear bar on accepting expensive gifts and enhance the justices’ public financial disclosure requirements.
Financial conflicts of interest are another significant ethical concern for the federal judiciary: the Wall Street Journal found that at least 131 federal judges violated the law by participating in at least 650 cases in which they had a financial interest in one of the parties. 61 judges actively traded shares in a party to an ongoing case. To stop financial conflicts of interest Congress first must bar federal judges, their spouses, and their dependent children from owning or trading any individual stocks or other financial instruments. Second, Congress must apply the federal criminal conflict of interest statute to the Supreme Court and federal judiciary, which would bar judges and justices from participating in cases in which they have financial interests. Legal ethics experts have noted that Congress has broad authority to provide that ethics rules apply to Supreme Court justices.
It is vital that Congress take steps to rebuild public trust in the judiciary. After numerous recent ethical concerns and violations, it is clear that there are a number of necessary legislative steps that would begin to solve the judicial ethics crisis.