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The Supreme Court of the United States Needs More Regulation

Sonali Muthukrishnan

Edited by Ishika Bhatia and Vedanth Ramabhadran


In the past couple of months, the integrity of the Supreme Court has come under question. In August 2023, Justice Clarence Thomas admitted to taking gifts and services from Republican mega-donor Harlan Crow, after failing to report these instances to the federal judiciary [1]. Thomas’ indiscretions include various private jet trips, a home for his mother, and tuition for one of his children. In addition, ProPublica reported that Justice Samuel Alito took a private trip to Alaska that was sponsored by two wealthy Republican donors, one of whom had multiple interests in front of the court [2]. 

The repeated concealed instances of sponsorship by wealthy individuals who are directly implicated in SCOTUS decisions have brought the court under public fire, leading to many calling for an official code of ethics and further governmental regulation. The US Supreme Court Justices continue to abuse their power and positions. In order to better regulate their behavior,  the American political system must take measures to decrease the insulation of the court and their opinions.


The Supreme Court and the Constitution

The Supreme Court of the United States was established through the third article of the US Constitution, acting as the judicial branch of the federal government [3].

While the court is a branch within itself, the Constitution allows Congress to choose how to organize it. The Judiciary Act of 1789 created a six-justice court and a lower federal court system. The number of justices on the court has differed from five to ten, but shortly after the Civil War, they settled on a nine-judge court. While past presidents have threatened judicial expansion by packing the court, the executive branch has yet to add additional justices to the bench [4.]

The current president appoints new justices to the court and the Senate confirms these appointments through a hearing process. Supreme Court Justices hold office for lifetime appointments; they can choose to step down and retire or they can continue to hold their roles until they pass away. The longevity of their role and their lack of involvement in electoral politics was intended to insult the court from partisan issues, allowing them to be unbiased in their court decisions. Unfortunately, in recent years the theory and apprentice of the Supreme Court has started to migrate to partisan party affiliations, failing to meet the objective standard the highest court in the land used to have.

The Supreme Court has no officially enforced code of conduct. Following Thomas’ errors, the court signed a statement of ethics, however, there are limited measures in place that restrict unethical behavior on the part of the justices [1]. The lack of enforcement measures can be attributed to the idea that Supreme Court Justices are supposed to represent the best and most ethical.. The Constitution assumes that their appointment process will eliminate those who do not abide by the highest standards of law, but that is no longer true. Every other branch of government is governed by a code of ethics particular to their work, ensuring that their behavior, regardless of who is in office, follows the same standards [5].


SCOTUS Regulation Today 

While there is a lack of enforcement measures today, there are some rules that the nine justices must abide by. Among them is the requirement that the justices file financial disclosures, anything above $480 dollars as of 2023.The rule stems from the Ethics in Government Act of 1978, which requires financial disclosure in light of the Watergate Scandal which relates to governmental corruption[5]. This financial measure is exactly what Justice Thomas and Alito failed to complete accurately.

Thomas argued that he did not have to disclose the gifts from Crow due to their close personal friendship. He also claimed to not understand the 1978 Act, a law he had followed in the past. While personal hospitality is an exception to the financial disclosure rule, it is clearly defined as "any food, lodging, or entertainment received as personal hospitality of any individual need not be reported"[5]. Ethics law and financial disclosure regulations have always required the disclosure of free travel expenses, and Thomas’ confusion surrounding the law does not exempt him from it. Specifically, the law defines anything extended by a corporation and not an individual to be a violation, like in the case of Crow and Justice Thomas. All other federal employees face the enforcement of this specific law by the Department of Justice, however, Supreme Court Justices continue to operate untouched by the very law that is supposed to restrict their unethical behavior.

As part of the American Bar Association's Model Code of Judicial Conduct, justices must recuse themselves from cases in which their impartiality might be in question, but that choice is left up to their discretion. Unfortunately, many of the justices have violated the trust of this regulation, failing to recuse themselves on cases that they have a direct connection to [6].

Another important regulation to ensure the integrity of the judges is the Senate hearing process [7]. Following the nomination of a Supreme Court Justice by the current President, the Senate holds hearings to verify the quality of the nominee and their ability to take on the important role of being a lifetime appointment justice. Historically, a third of nominees have been rejected simply because the Senator did not agree with the nominee’s political stance [8]. Still, the investigatory nature of the hearings did have an impact on the acceptance or rejection of certain nominees. 

More recently, two different justices were accused of sexual assault during their hearings, Justice Kavanaugh and Justice Thomas, yet both were still selected to sit on the court. The Senate allowed the testimony of those who bore witness to these acts, yet they did not take action to bar these nominees from the court. The largely symbolic hearings no longer hold the same weight they used to, allowing people who have repeatedly shown they have a disregard for ethical behavior to take a spot on the highest court of the land. 

Another measure to stop unethical behavior on the court is impeachment. Only one Supreme Court Justice has ever been impeached, Associate Justice Samuel Chase in 1805.[9] While the House of Representatives passed the Articles of Impeachment against him he was acquitted by the Senate. Impeachment is an extreme measure, however it must be used when necessary.

The Judicial Conference is the policy-making body of the federal courts, which convene twice a year to consider issues affecting the court system. They make recommendations to Congress concerning the Judicial Branch [10]. If the Judicial Conference finds grounds for impeachment it submits a report to the House of Representatives. Only Congress has the power to remove a Supreme Court Justice. First, the House uses a vote of impeachment, then if it passes, the Senate proceeds with a trial and conviction [11].

The regulation of Supreme Court Justice is incredibly minuscule, which is extremely concerning considering the unethical behavior some on the bench have shown in the past few years. In order to make sure that justices adhere to ethical standards, Congress must create and enforce an ethical code for the Supreme Court. 


Past Solutions

For President Franklin D. Roosevelt, court packing was a legitimate solution to unwanted judicial behavior. FDR proposed judicial expansion to gain favorable votes for his legislative proposals. The Judicial Procedure Reform Bill of 1937 allowed the President to appoint an additional justice for every sitting justice over 70 years old. Though he never went through with the plan, his threat was enough to force the justices to take action and approve his New Deal program during the height of the Great Depression [12].

Court packing could curb unethical behavior in the court, reminding the justices that they aren’t above the law and that Congress and the Executive branch have the power to regulate them. While it may not be the most direct approach to ethical abuses, President Joe Biden has considered court packing after President Donald Trump transitioned the court into a conservative majority [13]. It is a feasible but unprecedented solution, but for a more specific approach, the government must turn to new solutions.


Modern Solutions

Improving current regulation measures is another feasible option that would meet significantly less pushback from partisan actors. By raising the standard for nominations and returning Senate hearings to what they once were, the American people can ensure that their court representatives are ethical people who stick to clear standards. 

To raise the standard for nominations, presidents must elect individuals who not only show professional brilliance but also show that they are moral individuals who adhere to the law. The vastness of the legal field allows president’s the ability to appoint those who have historically upheld moral and ethical standards. It is vitally important for presidents to abide by the same moral standard when electing individuals to the highest court because they can shape the nation for years to come. An executive order outlining those ethical guidelines could be a wonderful new tradition that helps emphasize the importance of knowing exactly who the president elects to the bench. 

Furthermore, the Senate must take nominations as an investigatory measure. If anything comes up that seems morally reprehensible that must result in consequences. Congress cannot continue to eliminate people from the bench based on partisan politics, but ignore the witnesses coming to testify before them. Character matters, history matters, and that should be what defines if a Justice’s nomination goes through, not their political party. The Senate must act as the governing body it is supposed to be and enforce the seriousness of these hearings. Congress must take  its power and use it to make sure that all members of the Supreme Court are ethical individuals, the best of the best in the legal field. 

In addition to improving current regulation measures, Congress should draft and pass a code of ethics that the Department of Justice (DOJ) can readily enforce. While the DOJ can address violations of financial filings, they have yet to enforce this measure against any of the justices. By creating a separate code of conduct, Congress can encourage the DOJ to take control and enforce the rules they outline for every other federal government employee. Every branch of government is subject to this regulatory measure, the Supreme Court should not be any different. Congress had already taken steps to create a Supreme Court Ethics, Recusal and Transparency Act in 2022, but this bill did not pass [14].

Clearly, there is a need for a uniform code of conduct to eliminate any confusion for the justices about what behavior crosses the line into corruption. The court needs external regulation. Insulation from partisan politics is important, but those on the highest court should not be protected from the law. By outlining this code, Congress can ensure that the DOJ enforces any violations. A code of conduct would also curb growing American discontentment with the court.[6] The Supreme Court has always been a court of public opinion, if the public believes that the court is corrupt, its legal power will diminish which would create unprecedented issues.

To help the DOJ address possible ethics violations the Supreme Court should have an ethics lawyer and inspector general, practices common in most executive branch agencies.[6] An ethics office would be put into place, headed by the chief ethics lawyer to give everyone employed in the branch ethics briefs and advise on, in the moment, ethics questions. They would also assist with financial disclosure filing, eliminating any confusion and ensuring that the rule is adhered to correctly. 

With the addition of an independent Supreme Court Inspector General, the ethics office would help regulate the behavior of the court. The independent inspector general would have investigative powers allowing them to uncover and investigate allegations of ethics breaks or other laws and would then take their collected information to Congress. The public would also get to have a role in this process, with a public interest tip line or website that could provide the inspector general with valuable outside information. The public role in this regulation would make Americans feel as though their voices are heard through the court regardless of their insulation. 

Right now the court has a senior lawyer who serves as its Legal Council, they provide legal services to the court, however, there needs to be someone solely focused on the ethics within the Supreme Court [6]. The main issue with SCOTUS is the lack of independent enforcement and investigation of their ethics breaches. Justices are left to regulate themselves, someone has to do it for them. No matter the role, we are all susceptible to ethical issues when left to our own devices. By assigning and defining who in the judicial branch will outline ethical standards and help the justices stick to them, the federal government can quell the controversy and let the American people know they hear them. 

Congress should appoint and assign both a Supreme Court Inspector General and a Chief Ethics Lawyer to create the office of ethics for the judicial branch. Their power over the Supreme Court’s organization makes them the obvious choice for the role. Additionally, by delegating this role to Congress, the legislative body can ensure that presidential discretion on who is nominated to the court is checked through the ethics office they set up. 


Conclusion 

In recent years the Supreme Court of the United States has become an ethically fraught institution. Without external regulation, the court has failed to maintain clear ethical boundaries. Facing pushback from the public, a court code of ethics must be put into place to outline what is acceptable and what is not.   

In order to restore American trust and regulate ethical issues within the court, Congress must step up and create an ethics office. Additionally, they must take current regulation measures, like the Supreme Court nomination hearings more seriously. While the court should remain generally insulated from public opinion, they should not be immune to ethical standards. The importance and impact of the justices’ roles make it vital that they behave ethically and increased federal regulation will allow them to do that. Furthermore, presidents must only give out nominations to those who act with integrity, both in the professional sense and in their personal lives. Supreme Court Justices hold immense power in their ability to shape the nation’s moral and legal power, and should be held to a higher standard than the average citizen.

While impeachment or court packing may seem like extreme measures, there are better solutions to examine. Modern day solutions make it clear that federal regulation is the answer to a better, more trustworthy court. For too long the highest court in the land has been left to their own devices, but they are not above the law. The Supreme Court will shape American law for years to come, and it must be an institution the public can trust and rely on. 

 

[1] Justice Clarence Thomas reports he took 3 trips on Republican donor’s plane last year, <span style="font-variant:small-caps;">AP News</span> (2023), https://apnews.com/article/supreme-court-ethics-finances-justices-thomas-alito-08ec6e88a7c29c55c9d3991903ca0db7 (last visited Mar 12, 2024).  

[2] Justin Elliott Mierjeski Joshua Kaplan,Alex, <i>Justice Samuel Alito Took Luxury Fishing Vacation With GOP Billionaire Who Later Had Cases Before the Court</i>, <span style="font-variant:small-caps;">ProPublica</span> (2023), https://www.propublica.org/article/samuel-alito-luxury-fishing-trip-paul-singer-scotus-supreme-court (last visited Mar 12, 2024).

[3] About the Supreme Court | United States Courts, https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about (last visited Mar 12, 2024).

[4] FDR Tries to “Pack” the Supreme Court, https://teachdemocracy.org/bill-of-rights-in-action/bria-10-4-a-fdr-tries-to-pack-the-supreme-court.html (last visited Mar 12, 2024).

[5] Domenico Montanaro, Justice Thomas Gifts Scandal Highlights “double Standard” for Ethics in Government, NPR, Apr. 24, 2023, https://www.npr.org/2023/04/24/1171343472/justice-thomas-gifts-scandal-highlights-double-standard-for-ethics-in-government (last visited Mar 12, 2024).

[6] Richard W. Painter, SCOTUS House: Can a Supreme Court Ethics Lawyer and Inspector General Help Get This Fraternity under Control, (2023), https://papers.ssrn.com/abstract=4518697 (last visited Mar 12, 2024).

[7] U.S. Senate: Nomination Hearings for Supreme Court Justices, https://www.senate.gov/committees/SupremeCourtNominationHearings.htm (last visited Mar 12, 2024).

[8] U.S. Senate: About Judicial Nominations | Historical Overview, https://www.senate.gov/about/powers-procedures/nominations/judicial-nominations-overview.htm (last visited Mar 12, 2024).

[9] Frequently Asked Questions: General Information - Supreme Court of the United States, https://www.supremecourt.gov/about/faq_general.aspx#:~:text=The%20only%20Justice%20to%20be,was%20acquitted%20by%20the%20Senate (last visited Mar 12, 2024).

[10] Governance & the Judicial Conference | United States Courts, https://www.uscourts.gov/about-federal-courts/governance-judicial-conference (last visited Mar 12, 2024).

[11] Judges and Judicial Administration – Journalist’s Guide | United States Courts, https://www.uscourts.gov/statistics-reports/judges-and-judicial-administration-journalists-guide (last visited Mar 12, 2024).

[12] How FDR lost his brief war on the Supreme Court | Constitution Center, National Constitution Center – constitutioncenter.org, https://constitutioncenter.org/blog/how-fdr-lost-his-brief-war-on-the-supreme-court-2 (last visited Mar 12, 2024).

[13] Charlie Savage, ‘Court Packing’ Issue Divides Commission Appointed by Biden, The New York Times, Dec. 8, 2021, https://www.nytimes.com/2021/12/07/us/politics/supreme-court-packing-expansion.html (last visited Mar 12, 2024).

[14] H.R. 7646 - Supreme Court Ethics, Recusal, and Transparency Act of 2022, May 11, 2022, https://www.congress.gov/bill/117th-congress/house-bill/7647


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