Merkley, Wyden, Colleagues Lead the Charge to Establish Binding Code of Ethics for U.S. Supreme Court
Supreme Court Ethics, Recusal, and Transparency Act would require the Supreme Court to adopt a binding and enforceable code of ethical conduct; Congress, the executive branch, all lower federal courts, and every state supreme court have ethics guardrails and a mechanism for enforcing ethics rules
Washington, D.C. – Oregon’s U.S. Senators Jeff Merkley and Ron Wyden announced today they joined their colleagues to reintroduce the bicameral Supreme Court Ethics, Recusal, and Transparency (SCERT) Act. The legislation would require Supreme Court justices to adopt a binding code of conduct and create a mechanism to investigate alleged violations of the code of conduct and other laws. Led by U.S. Senator Sheldon Whitehouse (D-RI) and U.S. Representative Hank Johnson (D-GA), the SCERT Act would improve disclosure and transparency when a justice has a connection to a party or amicus before the Court, end the practice of justices ruling on their own conflicts of interests, and require justices to explain their recusal decisions to the public.
“All Supreme Court justices should be held to a binding code of ethics, just like all other federal judges, the executive branch, and Members of Congress,” said Merkley. “Thanks to the Federalist Society, the highest court in the land has become compromised, pushing a right-wing, corporate viewpoint above all else. To restore a government in service of the people—not the powerful—it’s clear we need to pass the Supreme Court Ethics, Recusal, and Transparency Act.”
“It’s imperative the U.S. Judicial Branch serve its Constitutional duty to uphold laws set by Congress, not accept lavish gifts from constituents scheming to curry favor with the court,” said Wyden. “I’ve been watchdogging Clarence Thomas’ unethical acceptance of gifts and sounding the alarm that he and any other judge who won’t recuse themselves in cases where they have a vested interest are compromising their oaths to defend the Constitution. If they won’t recuse themselves, we must prevent any egregious breach of ethics by passing the Supreme Court Ethics, Recuse and Transparency Act.”
In the last two years, reporting from ProPublica and the New York Times has exposed Justice Clarence Thomas’s long record of accepting undisclosed gifts from politically active right-wing billionaires. Further reporting from ProPublica found that Justice Samuel Alito accepted private jet travel to an all-expenses-paid vacation from a hedge fund billionaire who had contributed over $80 million to Republican political organizations and had business before the Court. Justice Alito’s luxury vacation was organized by Leonard Leo, the engineer of the current right-wing Supreme Court supermajority at the behest of a cadre of right-wing billionaires and special interests.
The SCERT Act would address these ethical shortfalls and help restore Americans’ faith in the judicial branch. The bill would:
Develop a Process for Enforcement of a Code of Conduct
- Require the Supreme Court to adopt a code of conduct within 180 days;
- Require the Supreme Court to publish its code of conduct and any other rules or procedures related to ethics, financial disclosure, and judicial misconduct;
- Require the Supreme Court to create a transparent process for the public to submit ethics complaints against the justices, and for a random panel of chief judges from the lower courts to investigate and make recommendations based on those complaints;
- Require safeguards modeled on the lower courts’ complaints process to deter and punish frivolous ethics complaints.
Improve Gift Rules and Transparency
- Require the Supreme Court to adopt rules requiring disclosure of gifts, travel, and income received by justices and law clerks that are at least as rigorous as the House and Senate disclosure rules;
- Require the rules for what gifts justices can accept to be as restrictive as Congress’;
- Require greater disclosure of amicus curiae funding;
- Require parties and amici curiae before the Supreme Court to disclose any recent gifts, travel, or reimbursements they’ve given to a justice;
- Require parties and amici curiae before the Supreme Court to disclose any lobbying or money they spent promoting a justice’s confirmation to the Court.
Strengthen Recusal Requirements
- Create new recusal requirements governing gifts, income, or reimbursements given to judges;
- Create new recusal requirements governing a party’s lobbying or spending money to campaign for a judge’s confirmation;
- Ensure that requests for a judge to recuse are reviewed by a panel of randomly selected, impartial judges, or by the rest of the justices at the Supreme Court;
- Require written notification and explanations of recusal decisions;
- Require the judiciary to develop rules explaining when a judge’s connection to an amicus curiae brief might require recusal; and
- Require the Federal Judicial Center to study and report to Congress every two years on the extent to which the judiciary is complying with recusal requirements.
A recent report from Senator Whitehouse found every state supreme court (or equivalent high court) subjects its judges or justices to ethics reviews—similar to the processes that apply to all federal judges except the Supreme Court under the Judicial Conduct and Disability Act. The SCERT Act would eliminate this loophole by establishing an ethics review process for the Supreme Court.
Congress has an appropriate and well-established role in oversight of the judiciary and updating ethics laws that apply to federal officials, including federal judges and justices. Congress passed the Ethics in Government Act and judicial recusal law, which expressly apply to Supreme Court justices. Congress created through statute the Judicial Conference, which administers financial disclosure laws for the entire judiciary. Congress also has the authority to regulate and make exceptions to which cases justices can hear, outside of a small category of cases required by the Constitution.
In addition to Merkley and Wyden, the legislation was cosponsored by Senators Richard Blumenthal (D-CT), Tammy Baldwin (D-WI), Cory Booker (D-NJ), Chris Coons (D-DE), Richard Durbin (D-IL), John Fetterman (D-PA), Ruben Gallego (D-AZ), Kirsten Gillibrand (D-NY), Martin Heinrich (D-NM), John Hickenlooper (D-CO), Mazie Hirono (D-HI), Tim Kaine (D-VA), Mark Kelly (D-AZ), Amy Klobuchar (D-MN), Ed Markey (D-MA), Patty Murray (D-WA), Alex Padilla (D-CA), Jack Reed (D-RI), Bernie Sanders (I-VT), Brian Schatz (D-HI), Adam Schiff (D-CA), Tina Smith (D-MN), Chris Van Hollen (D-MD), and Peter Welch (D-VT).
The legislation was endorsed by Citizens for Responsibility and Ethics in Washington (CREW), Fix the Court, Public Citizen, Demand Justice, Accountable.US/Accountable.NOW, Common Cause, End Citizens United/Let America Vote, New York City Bar Association, People’s Parity Project, League of Conservation Voters, Court Accountability Action, Free Law Project, American Governance Institute, Lawyers for Good Government, and Stand Up America.
Full text of the bill is available by clicking here.
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