Sens. Whitehouse and Blumenthal and Reps. Johnson, Nadler, Quigley, and Cicilline Introduce New Version of Supreme Court Ethics, Recusal, & Transparency Act
As ethical lapses at the Supreme Court pile up, strengthened SCERT Act would bring basic transparency and accountability to the federal judiciary Bill introduction follows new reporting indicating that the justices have been unable to reach consensus on a code of conduct
Washington, DC – With the Supreme Court facing a series of ethics scandals, U.S. Senators Sheldon Whitehouse (D-RI) and Richard Blumenthal (D-CT) and Representatives Hank Johnson (D-GA), Jerrold Nadler (D-NY), Mike Quigley (D-IL), and David Cicilline (D-RI) today reintroduced the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act to bring basic transparency and accountability standards to the Supreme Court. The legislation would create a much-needed process for investigating misconduct at the Supreme Court, strengthen recusal standards for judges and disclosure rules for special interests trying to influence the courts, improve disclosure of travel and hospitality for judges, and mandate the creation of a binding code of ethics. Introduction of the comprehensive Supreme Court ethics legislation follows a new report from theWashington Post today indicating that the justices have been unable to reach consensus around a code of conduct on their own.
“There are good reasons Americans are losing confidence in their Supreme Court: special interests are spending millions to try to rig the judiciary in their favor, and the justices continue to shrug off their own self-imposed ethics crises,” said Senator Whitehouse, Chairman of the Senate Judiciary Courts Subcommittee. “Every other major decisionmaker in the federal government is subject to these kinds of ethical guardrails. It’s clearer than ever that it’s time to bring a fair and transparent set of rules—and procedures to enforce the rules—to the highest court.”
“This bill will implement some basic accountability and transparency measures to begin restoring public trust and confidence in our courts – the lifeblood of our judicial branch,” said Senator Blumenthal, a member of the Senate Judiciary Committee. “Serious financial disclosures and standards for recusal are pretty basic requirements for a court making decisions that impact the lives of every single American. Americans’ trust in the Supreme Court has never been lower, which is why this measure is so urgent. I’m proud to be working with colleagues in both the House and the Senate to move these vital reforms forward.”
“This bill is a long time coming,” said Congressman Johnson, Ranking Member of the Judiciary Subcommittee on Courts. “Many of these changes have been put before this body in one form or another for the past decade or more. We are seeing the effects of our inaction. The word unprecedented is starting to lose its meaning as we see more and more questionable behavior from justices. And public trust and confidence in the Supreme Court is at an all-time low. By mandating that the Supreme Court develop and adopt a code of ethics and establishing common-sense transparency and recusal standards, this bill would help restore the Court's reputation and reinforce that none of us — not even Supreme Court Justices — are above the law.”
“The Supreme Court is one of the nation’s most vital institutions, so people are justifiably shocked when they learn that there is no code of conduct for the Supreme Court, even though there is for every other federal judge and member of Congress,” said Congressman Nadler, Ranking Member of the House Judiciary Committee. “Recent events at the Court—whether it be the unprecedented leak of a draft opinion, speeches given at closed-door events with parties to ongoing cases in front of the Court, or public appearances with political figures—all point to the need for a defined code of ethics. This bill would finally require the Court to do just that: promulgate an ethics code for themselves. No longer would each justice get to pick and choose their ethical obligations without being bound by a single, uniform code.”
“Americans’ trust in the Court is at an all-time low and we need to act decisively to not only restore faith in our judicial system but to also sustain that trust once it is regained,” said Congressman Cicilline, Ranking Member of the House Judiciary Committee Subcommittee on the Administrative State, Regulatory Reform, and Antitrust. “This loss of trust didn’t happen overnight but has grown out of an increasingly partisan confirmation process that started with Mitch McConnell refusing to give Merrick Garland a hearing or a vote, extends to the clear conflict of interest posed by Ginni Thomas’s work and advocacy, and includes last year’s leak of the extremist anti-choice draft opinion. This bill is an important first step in restoring trust in our judicial system by imposing the type of ethics standard that should have long ago been in place. I’m proud that this bill includes provisions from my Judicial Travel Accountability Act and look forward to passing this bill when it comes to the House floor.”
In recent months, Whitehouse and Johnson engaged in a series of correspondence with the Supreme Court regarding an outside influence campaign – known as Operation Higher Court – exposed by reporting in Politico and the New York Times. A right-wing religious group, Faith and Action, targeted Republican-appointed justices and was able to gain advanced knowledge of the Court’s decision in a key case. Whitehouse and Johnson pressed Chief Justice John Roberts and the Supreme Court’s legal counsel about the lack of adequate ethical and legal guardrails at the Court, and asked if the Court had reevaluated any of its procedures related to judicial ethics in light of the reporting.
In the spring, Whitehouse and Johnson also wrote to Chief Justice Roberts requesting that he ensure that Justice Clarence Thomas recuse himself from cases involving his wife’s activities related to the 2020 election and the January 6 attack on the U.S. Capitol.
The SCERT Act would address these ethical and procedural shortfalls and help restore Americans’ faith in the judicial branch. The bill would:
Create Code of Conduct and Develop a Process for Enforcement
- 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.
Improve Hospitality and Financial Disclosures
- Require the Supreme Court to adopt rules requiring disclosure rules for gifts, travel, and income received by justices and law clerks that are at least as rigorous as the House and Senate disclosure rules;
- 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.
The SCERT Act is cosponsored by Jeff Merkley (D-OR), Cory Booker (D-NJ), Kirsten Gillibrand (D-NY), Jack Reed (D-RI), Richard Durbin (D-IL), Dianne Feinstein (D-CA), Mark Warner (D-VA), Bernie Sanders (I-VT), and Mazie Hirono (D-HI).
“The Supreme Court makes decisions that deeply impact the lives of all Americans, and we deserve to know that all Supreme Court justices are held to the highest ethical standards when making those decisions,” said Karen Hobert Flynn, President of Common Cause. “We commend Senator Whitehouse and Representative Hank Johnson for reintroducing the Supreme Court Ethics, Recusal, and Transparency Act to ensure that the Supreme Court is bound by a judicial code of conduct, as all other courts and judges around the country are.”
“As we saw last year, the extremist majority on the Supreme Court has turned the Court into a corrupt, partisan body that is eroding Americans’ faith in our judiciary and our democracy,” said Tiffany Muller, President of End Citizens United//Let America Vote Action Fund. “There’s been ethics scandal after ethics scandal, and yet the Justices are the only federal judges without a code of ethics. That’s why Senator Whitehouse’s Supreme Court Ethics, Recusal, and Transparency Act is so important. It will put in tough ethics standards and ensure Americans have full transparency into the Justices’ ethical and legal issues.”
“The ethical crisis engulfing the Supreme Court threatens to undermine public faith in the entire judicial branch. For an institution whose credibility is its currency, this crisis of confidence is already having disastrous effects with confidence in the Supreme Court sinking to historic lows,” said Debra Perlin, Policy Director at Citizens for Responsibility and Ethics in Washington. “The Supreme Court Ethics, Recusal and Transparency Act is a strong response to this crisis, as it would help rebuild public trust in the judiciary by holding Supreme Court justices to the highest ethical standards, creating clear standards for recusal, and bringing transparency to the judiciary’s opaque practices. CREW applauds Sen. Whitehouse and Rep. Johnson for reintroducing this crucial piece of legislation and urges both houses to send it to President Biden’s desk for his signature as swiftly as possible.”
“There’s currently no way to file a formal complaint against a Supreme Court justice for violating basic ethics rules — not when they fail to recuse from petitions despite obvious conflicts of interest, nor when they accept lavish gifts and travel, nor when they're the willing target of a partisan influence campaign,” said Fix the Court executive director Gabe Roth. “This bill fixes that oversight by creating such a process — and, in focusing on the advisory nature of the process, does so in a way that can function within our constitutional order. I applaud Rep. Johnson and Sen. Whitehouse for this work and for normalizing the view that Supreme Court justices are not infallible because they're final — rather, they're not infallible, period, and they need the same or similar ethical guardrails that exist in the other branches and in the lower courts."
A Gallup poll conducted in June – before the Court overturned Roe v. Wade, curtailed the EPA’s ability to fight climate change, and threw out centuries-old gun safety regulations – found that only 25 percent of Americans had a “great deal of confidence” in the Supreme Court.
Whitehouse and Johnson have championed a series of bills to root out special interest control of the courts and repair the American people’s trust in the judiciary. Last Congress, Whitehouse and Johnson led the introduction of the Supreme Court Review Act, which would provide Congress with fast-track procedures to respond more quickly with legislation to Supreme Court decisions that rest on an interpretation of a federal statute or eliminate or diminish a constitutional right. Whitehouse and Johnson also introduced the Supreme Court TERM Act to establish 18-year terms for justices, restoring fairness and balance to the Court.
Whitehouse’s DISCLOSE Act, which Republicans voted down last Congress, would shine a light on the big special interests spending unlimited sums to purchase influence over the government and require groups that spend money on ads supporting or opposing judicial nominees to disclose their donors.
Meaghan McCabe, (202) 224-2921
Next Article Previous Article