Criminal Law Library Blog
INTRODUCTION
In recent years, the integrity of the U.S. Supreme Court has faced increasing scrutiny amid reports of unreported financial dealings and alleged ethical lapses by some of its justices. In response, the Court issued its first-ever formal ethics code on November 13, 2023, marking a historic shift toward greater transparency. However, this self-imposed code relies on internal enforcement, leaving critics to question its effectiveness and it’s ability to compare it to more robust measures proposed in Congress. Legislative efforts, such as the Supreme Court Ethics, Recusal, and Transparency Act of 2023 and the Supreme Court Ethics and Investigation Act of 2024 underscore a growing demand for external oversight and standardized accountability.
This article explores the intersection of these developments, examining whether the Court’s new ethics code sufficiently addresses public concerns or if legislative interventions remain necessary to restore trust in the nation’s highest judicial body. By tracing the origins, goals, and limitations of these initiatives, we aim to provide an overview of the ongoing debate over judicial ethics and reform. *
FORMAL ETHICS CODE ISSUED BY THE SUPREME COURT
The Statement of the Court Regarding the Code of Conduct, issued by the Supreme Court on November 13, 2023, introduced the Court’s first-ever formal ethics code. This move aimed to address growing criticism regarding the absence of such a framework and to dispel the perception that the justices are not bound by ethical standards. The code mostly codifies existing principles and practices long followed by the Court, with adaptations to the Supreme Court’s unique role and structure. The Supreme Court’s new Code of Conduct codifies ethical principles the Court asserts it has long followed, such as guidelines on recusal and financial disclosures. However, it has notable limitations:
Self-Enforcement: The code does not establish an independent mechanism to enforce its provisions. Instead, it relies on the honor system, where justices oversee their own compliance. SCOTUSblog , POLITICO .
Recusal Standards: The document addresses recusal, indicating justices must step aside when impartiality might reasonably be questioned. However, it continues to allow individual justices discretion in determining whether to recuse, without mandatory disclosure of reasons SCOTUSblog ,
.Transparency Issues: While formalizing rules on reporting gifts and travel, the code adopts language similar to existing lower court rules but stops short of adopting comprehensive guidance on ethics and transparency
Critics argue that these limitations underscore the Court’s resistance to external oversight. Some see the code as a strategic response to public and legislative scrutiny rather than a substantive reform, particularly given ongoing congressional proposals advocating for binding Supreme Court ethics measures. SCOTUSblog ,
PROPOSED CONGRESSIONAL LEGISLATION.
The Supreme Court Ethics, Recusal, and Transparency Act of 2023 (SCERT Act) and the Supreme Court Ethics and Investigation Act of 2024 share similar goals of addressing ethical concerns and enhancing transparency within the U.S. Supreme Court, but they differ in their specific provisions and approaches:
Supreme Court Ethics, Recusal, and Transparency Act of 2023
Introduced by Senator Sheldon Whitehouse and others, the SCERT Act focuses on establishing comprehensive ethical standards for the Supreme Court. Key provisions include:
- Requiring the Court to adopt and publish a code of conduct for justices, with enforcement mechanisms.
- Enhancing disclosure requirements for gifts, travel, and financial matters for justices and law clerks, aligning them with congressional standards.
- Strengthening recusal rules to address conflicts of interest, including external lobbying and financial connections.
- Creating a transparent process for investigating ethics complaints through randomly selected panels of judges.
- Mandating reports on compliance with ethics and recusal standards
Congress.gov | Library of Congress , Senator Sheldon Whitehouse .
.Supreme Court Ethics and Investigation Act of 2024
This House bill builds on public and legislative calls for accountability, but introduces mechanisms for independent investigation of justices. Its goals include:
- Establishing a bipartisan commission to investigate ethical lapses by Supreme Court justices, including conflicts of interest and inappropriate conduct.
- Allowing Congress to review and recommend actions based on commission findings.
- Reinforcing recusal standards and introducing public reporting on recusals
Similarities and Differences
Both acts aim to restore public trust in the judiciary through ethical reforms and transparency. However, the SCERT Act emphasizes proactive measures, for example, adopting codes of conduct and enhancing disclosures, while the 2024 bill leans towards creating investigative and corrective mechanisms for accountability. The SCERT Act is broader in scope, addressing systematic ethics concerns, whereas the 2024 bill is more focused on direct investigations into justices’ conduct.
Together, these bills reflect a growing bipartisan effort to ensure that the judiciary, especially the Supreme Court, adheres to rigorous ethical standards.
THE AMERICAN BAR ASSOCIATION RESPONSE.
In February 2023, amid a nationwide controversy concerning ethics at the U.S. Supreme Court, the ABA House of Delegates adopted Resolution 400. It urged the court to adopt a code of judicial ethics that is binding on the justices, comparable to the code of conduct for other federal judges. See: ABA Promotes Binding Supreme Court Ethics Code.
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*As noted, the primary focus of this article is an examination of three documents related to supreme court reform. Those interested in examining supreme court reform through a broader lens may also want to consult the following references:
Press Release. Congressman Dan Goldman Introduces “Supreme Court Ethics Investigation Act”..,
The Legislative Paths to Supreme Court Ethics and Responsibility.
Fixing the Supreme Court’s Ethics Problem Starts with the Judicial Conference.