Congress Pushes Supreme Court on Ethics Rules

As promised a month ago, a group of Democratic members of Congress have reintroduced a bill to require U.S. Supreme Court justices to follow the same ethical rules as other federal judges.

To sell it, Senators Richard Blumenthal (D-Conn.), Chris Murphy (D-Conn.), and Sheldon Whitehouse (D-R.I.), along with Representative Louise Slaughter (D-N.Y.), are bringing out the same criticisms of Republican-appointed justices that have been batted around for years.

That includes Clarence Thomas' disclosure form flap over his wife's income, and Justices Samuel Alito and Antonin Scalia's attending political or fundraising events that the lawmakers say weaken public confidence. Last month, the liberal Alliance for Justice, involved in the push for this legislation, even suggested Alito's controversial eye rolls and head shakes might cross the line.

Slaughter said their "straightforward" and "common sense" bill, called the Supreme Court Ethics Act of 2013, would ensure neutrality and transparency at the country's highest court, during a press conference last week on Capitol Hill.

The bill would make the Code of Conduct for United States Judges mandatory for the Supreme Court. The code, which guides the behavior of lower federal court judges regarding recusals, fundraising and demeanor, has never applied to the justices themselves, although they have said that they look to it for guidance.

"If the code of conduct applied to the Supreme Court much if not all of what we believe are questionable behavior wouldn't have taken place," Slaughter said Thursday. "Because the code sets forth very simple rules such as no political activity, we think that’s very important, no fundraising, and a necessity to avoid even the appearance of impropriety."

Slaughter cited behavior that she said "would seem to violate" the code. In 2008, she noted, Justice Alito headlined the American Spectator magazine's annual fundraising gala and attended again in 2010, and he headlined a fundraiser for the conservative Intercollegiate Studies Institute in 2009.

In 2011, Scalia attended an "overtly political gathering of conservative activists" including Charles and David Koch, and the invitation explicitly stated said he would be there and plan how "to change the balance of power in Congress."

And she mentioned Thomas's did not report, on annual financial disclosure forms, his wife's past income from the Heritage Foundation and other sources. Thomas would later correct his omissions with amended financial disclosure forms under a cover letter that said the information was "inadvertently omitted due to a misunderstanding of the filing instructions."

Slaughter said the bill would "ensure the public has faith judicial decision making is based solely on the facts and the law, and not politics and outside influence." Senator Murphy introduced a similar bill when he was a member of the House.

The National Law Journal detailed the same criticisms of Supreme Court justices two years ago in the light of when they should recuse from certain cases. The upshot: The justices decide whether or not to bow out individually, with no requirement to explain, no resort to other justices or the full court, and no precedent to guide them.

Comments

[Pat Coulston]

Tom N and DF Lickiss are both mistaken; and need to read up on the Constitutional Power of Congress to Regulate the Supreme Court.
Here is a start, in plain English. Later they may want to actually try to read the Constitution.

"The chief justice has said that constitutional limits on congressional power to regulate the Supreme Court are largely untested. But the U.S. Constitution delegates to Congress the powers to regulate the court’s appellate jurisdiction and to make laws necessary and proper for 'carrying into execution' all powers vested by the Constitution in the government of the United States. Advocates of original intent might note that the founding generation interpreted those powers broadly to permit Congress to regulate the size of the Supreme Court, where, when and how often the court meets, how many justices constitute a quorum, and the duties of the justices themselves — including a duty to 'ride circuit' and hear cases as trial judges.
"Legislation requiring the court to write its own code of ethics falls well within this congressional power.
"[This bill] is rather an invitation. No rule is thrust on the justices. Under the Murphy bill, the justices are asked to start with the code governing other federal judges, but are then free to make 'any amendments or modifications' they deem 'appropriate.'
"A response that says, in effect, 'We won’t do it because you can’t make us' will hurt the court and the rule of law. So will ignoring the mandate."

[crashworthinesslawyer]

Supreme courts typically function primarily as appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts.

[DF Lickiss]

Either Tom N is correct and these legislators skipped the training on separation of powers or they are trying to score points w/ some constituents by putting forth a law that has zero chance of passing (just as the GOP does w/ its votes to repeal the ACA).

[Michael]

This is a transparently political move by the libs to embarass and thus cower the Supreme Court's conservative members. It exposes the senators' ignorance, intolerance, and constitutional illiteracy.

[Tom N]

In the face of separation of powers, I am simply bumfuddled as to how the legislative branch would hope to impress its will upon the judicial branch. Is this the Supreme Court The last time I looked at Article III, it stated that the judicial power of the United States is vested in one supreme court.

It certainly seems to me that the lawyers in this cadre missed class the day they taught Constitutional Law in law school