Editorial: The Supreme Court has ignored ethics oversight. Time for Congress to act

After months of reports about questionable conduct by justices of the U.S. Supreme Court, the Senate Judiciary Committee on Thursday will consider legislation that would lead to a binding code of conduct for members of the high court. Given the failure of the court to establish a code on its own — despite suggestions from some justices that such an initiative is under consideration — congressional action is overdue.

Unfortunately, enactment of such legislation is clouded by the same partisanship that has infected the selection of Supreme Court justices. But that mustn’t deter Congress from pressing for reforms that would make the court more transparent and accountable.

Although Chief Justice John G. Roberts Jr. has said that justices “consult” the Code of Conduct for United States Judges, justices aren’t formally covered by it. Justices are subject to financial-disclosure requirements, but Pro Publica reported this year that Justices Clarence Thomas and Samuel A. Alito Jr. accepted travel from wealthy individuals without disclosing that largesse. (Both justices said they didn’t believe they were obliged to disclose that information. Earlier this year the Judicial Conference of the United States clarified its guidance to say that judges must disclose travel by private jet.)

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As for transparency, justices are not required to explain why they choose not to participate in some cases, though, according to a statement by the justices sent to the Senate Judiciary Committee, a justice “may provide a summary explanation of a recusal decision.” “May” should be “must.”

The bill to be taken up on Thursday, the Supreme Court Ethics, Recusal and Transparency Act of 2023, would require the court to establish a code of conduct for its members; mandate public written explanations for all recusal decisions; and provide a mechanism for investigation of complaints that a justice had behaved unethically. These are all important objectives.

Ideally, improving judicial transparency would be a bipartisan cause. But the parties are mostly split on this issue. The bill is sponsored by Sen. Sheldon Whitehouse (D-R.I.), a caustic critic of the current court, and has only Democratic co-sponsors. Meanwhile, Senate Minority Leader Mitch McConnell (R-Ky.) has ridiculed Democrats on the Judiciary Committee for “trying to tell a coequal branch of government how to manage its internal operations, ostensibly to clean up its ‘ethics.’”

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This criticism is rich coming from McConnell, who did more than anyone in recent memory to politicize the Supreme Court when he and his colleagues in 2016 shamefully refused to consider President Obama’s nomination of Merrick Garland to the court. McConnell’s original rationale for leaving that seat open was that 2016 was an election year, and that “[t]he American people‎ should have a voice in the selection of their next Supreme Court justice.” Yet McConnell supported Donald Trump’s 2020 nomination of Justice Amy Coney Barrett, who was confirmed in an election year.

Not all Republicans oppose court reform. Sen. Lisa Murkowski (R-Alaska) has co-sponsored an ethics bill with Sen. Angus King of Maine, an independent who caucuses with Democrats. In some respects their proposal, the Supreme Court Code of Conduct Act, is preferable to the Whitehouse bill. For example, it provides that the court designate an individual, who could be a court employee, to process complaints against justices, with the possibility of an investigation commissioned by the marshal of the court. By contrast, the Whitehouse bill would have chief judges of federal appeals courts investigate.

Questions about ethics aren’t the only or even the principal reason for dissatisfaction with the Supreme Court. It has sullied its reputation for being above politics with a series of politically charged decisions in which Republican appointees predictably lined up on one side and Democratic appointees on the other. The court’s image also has suffered, deservedly, because of its disastrous decision last year to overrule Roe vs. Wade and dismantle nearly half a century’s judicial protection for abortion rights.

Yet the lack of a binding ethics code and inadequate oversight of gifts and travel are also a blot on the court’s reputation. Congress must begin the process of enacting reforms that the court itself has refused to undertake.