Congress must act quickly to help restore credibility and public trust to our federal judiciary. The Supreme Court Ethics, Recusal, and Transparency Act (SCERT Act), with its focus on recusal, is a critical, measured, and constitutionally appropriate step towards that goal.
The crisis of legitimacy in our judicial system is not just about a few bad actors—the Wall Street Journal reported in 2021 that over a nine-year period, more than 130 federal judges presided over more than 650 cases in which they had a material financial interest in one of the parties. These types of potential conflicts should not be normalized on the bench—yet several Supreme Court justices, across the ideological spectrum, have participated in cases that raise questions about their partiality.
In the last six months, concerns like these have erupted into major ethics scandals, eroding public trust in the Supreme Court to record lows. Recent reporting revealed that Justice Clarence Thomas accepted hundreds of thousands in dollars in gifts and travel from Harlan Crow, a billionaire political benefactor who has donated “millions of dollars to groups dedicated to tort reform and conservative jurisprudence.” Additionally, the public learned of a decades-long campaign in which individuals purchased unparalleled access to the Supreme Court, and may have obtained information that Hobby Lobby, a chain of arts and crafts stores owned by Christian evangelicals, would be winning their case, prior to it being publicly released.
Since the Supreme Court has proven that it cannot and will not adopt consistent ethics processes for all justices, Congress must step in. The SCERT Act takes a number of actions to respond to this crisis—each of which will help rebuild public confidence in the judiciary. In particular, the SCERT Act would reshape the Court’s recusal regime, bringing measures of transparency and accountability into an opaque and broken system. And while Congress cannot solve this problem by itself, these necessary steps can help to ensure that the high court is held to the high ethical standard its position of power demands.
An independent judiciary is the backbone of the rule of law. In the face of significant ethical failures by the justices, and continued failures to respond to the public’s calls for change, Congress has an obligation to implement reform. To be certain, the reforms SCERT proposes are just the tip of the iceberg—many more judicial reforms, including a full ban on all judges and justices from owning stocks, would help to fully shore up the legitimacy of the judiciary. It’s clear that the Supreme Court needs a reminder that though justices and judges interpret the law, they are not above it.